Opinion
13736 Index No. 152989/14 Case No. 2020-01341
05-04-2021
Timothy C. MULLINS, Plaintiff-Respondent-Appellant, v. CENTER LINE STUDIOS, INC., Defendant-Appellant-Respondent, New York Communications Center Associates, L.P., et al., Defendants-Respondents, NYC Production Core LLC, Defendant-Respondent-Appellant. [And Other Third-Party-Actions]
Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for appellant-respondent. Siegel & Coonerty, LLP, New York (Steven Aripotch of counsel), for Timothy C. Mullins, respondent-appellant. Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for NYC Production Core LLC, respondent-appellant. Eustace, Marquez, Epstein, Prezioso & Yapchanyk, New York (Maureen E. Peknic of counsel), for respondents.
Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for appellant-respondent.
Siegel & Coonerty, LLP, New York (Steven Aripotch of counsel), for Timothy C. Mullins, respondent-appellant.
Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for NYC Production Core LLC, respondent-appellant.
Eustace, Marquez, Epstein, Prezioso & Yapchanyk, New York (Maureen E. Peknic of counsel), for respondents.
Gische, J.P., Mazzarelli, Oing, González, JJ.
Order, Supreme Court, New York County (Kelly O'Neill Levy, J.), entered January 13, 2020, which, inter alia, denied defendant Center Line Studios, Inc.'s (Center Line) motion for summary judgment dismissing the Labor Law §§ 240(1) and 200 and common-law negligence claims and all cross claims as against it, and denied defendant/second third-party plaintiff NYC Production Core, LLC's (Production Core) motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously modified, on the law, to the extent of dismissing the Labor Law §§ 240(1) and 200 claims as against Center Line, and granting Production Core's motion for summary judgment dismissing the complaint and cross claims against it except those cross claims for contractual indemnification, and otherwise affirmed, without costs. Center Line is entitled to summary judgment dismissing the Labor Law § 240(1) claim as against it, as it was not a statutory agent. The record is clear that it had no authority to supervise and control plaintiff's work (see Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 318, 445 N.Y.S.2d 127, 429 N.E.2d 805 [1981] ).
Center Line is also entitled to summary judgment dismissing the Labor Law § 200 claim. Even assuming that Center Line is a proper Labor Law § 200 defendant, it cannot be held liable under the statute. This case is a means and methods of work case, and there is no proof that Center Line had authority to supervise and control plaintiff's work (see Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 144, 950 N.Y.S.2d 35 [1st Dept. 2012] ).
A claim for common-law negligence may lie even though there is no Labor Law § 200 liability (see Urban v. No. 5 Times Sq. Dev., LLC, 62 A.D.3d 553, 555, 879 N.Y.S.2d 122 [1st Dept. 2009] ; Bell v. Bengomo Realty, Inc., 36 A.D.3d 479, 481, 829 N.Y.S.2d 42 [1st Dept. 2007] ). A triable issue of fact exists as to whether Center Line negligently created or exacerbated a dangerous condition so as to have "launche[d] a force or instrument of harm" ( Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] [internal quotation marks omitted]). Although Center Line augmented the ladder as directed by Production Core, a triable issue of fact exists as to whether Center Line could have reasonably anticipated that the gluing of the rung to the top of the ladder would pose a hazard and likely to cause injury ( Ryan v. Feeney & Sheehan Bldg. Co., 239 N.Y. 43, 46, 145 N.E. 321 [1924] ["A builder or contractor is justified in relying upon the plans and specifications which he has contracted to follow unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury"]; see Rosenbaum, Rosenfeld & Sonnenblick, LLP v. Excalibur Group NA, LLC, 146 A.D.3d 489, 490, 45 N.Y.S.3d 37 [1st Dept. 2017] ). While plaintiff and the codefendants claim that Center Line dangerously altered the ladder despite knowing that the ladder was structural and climbable, Center Line claims that the ladder was a prop ladder that was not meant to be OSHA compliant, and that it augmented the ladder in reliance on Production Core's assurances that the top portion of the ladder would not be ascended by the actors. Such raises an issue of fact for the jury to decide.
The record establishes that Production Core was plaintiff's special employer. It is clear that, while plaintiff and his supervisor were paid by Murder for Two Limited Liability Co., Production Core essentially hired them and controlled and directed their work (see Workers' Compensation Law §§ 11, 29[6] ; Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557–558, 578 N.Y.S.2d 106, 585 N.E.2d 355 [1991] ; Gannon v. JWP Forest Elec. Corp., 275 A.D.2d 231, 231–232, 712 N.Y.S.2d 494 [1st Dept. 2000] ). Production Core is entitled to dismissal of the complaint and cross claims against it, except to the extent the cross claims are for contractual indemnification (see New York Hosp. Med. Ctr. of Queens v. Microtech Contr. Corp., 22 N.Y.3d 501, 510, 982 N.Y.S.2d 830, 5 N.E.3d 993 [2014] ; Tonking v. Port Auth. of N.Y. & N. J., 3 N.Y.3d 486, 490, 787 N.Y.S.2d 708, 821 N.E.2d 133 [2004] ).