Opinion
Index No. 68572/16
05-24-2019
CESAR RODRIGUEZ, Plaintiff, v. WYLDWOOD OWNERS ASSOCIATION CORP., Defendant. WYLDWOOD OWNERS ASSOCIATION CORP,, Third-Party Plaintiff, v. HUDSON VALLEY RESTORATION d/d/a T.O.D DEVELOPMENT CORP., Third-Party Defendant.
JACOB ORBESKY & ASSOCIATES, PLLC Attorneys for Plaintiff MARKS, O'NEILL, O'BRIEN & KELLY, P.C. Attorney for Defendant BURKE, CONWAY & DILLON' Attorneys for Hudson Valley
Unpublished Opinion
JACOB ORBESKY & ASSOCIATES, PLLC Attorneys for Plaintiff
MARKS, O'NEILL, O'BRIEN & KELLY, P.C. Attorney for Defendant
BURKE, CONWAY & DILLON' Attorneys for Hudson Valley
DECISION AND ORDER
LOEHR,J.
The following papers numbered 1- were read on motion of Plaintiff for summary judgment on the issue of liability against Defendant pursuant to Labor Law S 240(1) and the motion of Third-Party Plaintiff for summary judgment on its claim for contractual indemnification against Third-Party Defendant.
The third-Party Defendant also cross-moved for summary judgment dismissing the claims of Third-Party Plaintiff for common law contribution and indemnification. That motion was denied by a Decision and Order of Justice Lefkowitz, dated February 4,2019, as being untimely. This Court has considered the papers in connection with the other motions.
Papers Numbered
Notice of Motion(#l)- Affirmation -Exhibits 1
Affirmation in Opposition 2
Reply Affirmation -3
Notice of Motion(#2) - Affirmation - Exhibit, 4
Affirmation in Opposition 5
Affirmation in Opposition . 6
Upon the foregoing papers, it appears that on September 7, 2016 Plaintiff, who was employed as a painter, or painters' assistant, by Hudson Valley Restoration Corp. ("Hudson Valley"), the painting contractor hired by Wildwood Owners Association Corp., as owner of the common areas and exteriors of the condominium located at 27 Glen Hill Lane, Tarrytown, New York, fell when the unsecured ladder he had climbed to paint the exterior of the condominium fell: having fallen some 12 feet, Plaintiff broke his knee. Plaintiff commenced this action on December 7, 2016, asserting causes of action under Law Law SS 240(1) and 241(6), 200 and common law negligence. Defendant answered and impleaded Hudson Valley for common law contribution and indemnification and contractual indemnification. Plaintiff and Defendant now timely move for summary judgment.
As the building owner, Defendant may be held liable for a violation of Labor Law S 240(1) even if it did not exercise supervision and control over the work (Blake v Neighborhood Horn. Servs. of N.Y.City, I N.Y.3d 280, 287 [2003]). To hold a building owner strictly liable, a plaintiff must show both a violation of Labor Law S 240(1) and that such violation proximately caused his injuries (ld).
Labor Law S240(1) provides that:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, alteration, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hanger, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
Labor Law S 240(1) was enacted for the purpose of protecting workers who are working at a height from the risk of failing.
The Plaintiff established his prima facie entitlement to summary judgment for a violation of Labor Law S 240(1) by the evidence that his injuries resulted from his falling from an unsecured ladder while painting at the work site (Quattrocchi v F.J. Sciame Canst. Corp., 11 N.Y.3d 757 [2008]; Panek v County of Albany, 99 N.Y.2d 452, 458 [2003]; Barr v 1575 Ave. LLC 60 A.D.3d 796, 797 [2d Dept 2009]; Mingo v Lebedowicz, 57 A.D.3d 491, 493 [2d Dept 2008]). Contrary to Defendant's argument, Plaintiff was not required to show that the ladders were defective in some way as part of his prima facie case for summary judgment.. It is sufficient for purposes of liability under section 240 (I) that adequate safety devices to prevent the ladders from falling, tipping or wobbling were absent (McCarthy v Turner Cons!., Inc., 52 A.D.3d 333, 333-34 [Ist Dept 2008]; Morin v Machnick Builders, Ltd., 4 A.D.3d 668, 670 [3d Dept 2004]). Defendant's response that, as a recalcitrant worker who refused to use available safety harnesses, Plaintiff was the sole proximate cause of the fall is without merit (McCarthy v Turner Const., Inc., 52 A.D.3d 333, 334 [1st Dept 2008]). While Hudson Valley testified that there were generally safety harnesses in a trailer at the work site, there was no evidence that Plaintiff was directed to use them, or even made aware of their existence (Morin v Machnick Builders, Ltd., 4 A.D.3d 668, 671 [3d Dept 2004]). Accordingly, Plaintiff is granted summary judgment as to liability on his Labor Law S240(1) claim.
Defendant has moved for summary judgment on its third party claim for contractual indemnification. Having established the contract, it's freedom from negligence as it did not supervise the painting and Hudson Valley's negligence in failing to provide a safe ladder, the motion is granted. Additionally, as it is apparently not disputed that Hudson Valley failed to obtain insurance for Defendant as also required under the contract, the motion is granted with respect to that breach as well.
Hudson Valley also moved for summary judgment dismissing Defendant's third party claims against it for common law indemnification and contribution as barred by Workers' Compensation Law S 11 as Plaintiffs injuries were not "grave." While true (see Castro v United Container Machinery Group, Inc, 96 N.Y.2d 398 [2001]; New York Hospial Medical Center of Queens v Microtech Contracting Corp., 98 A.D.3d 1096, 1097 [2d Dept 2012]), as stated above, the motion was not timely. Moreover, it became essentially moot inasmuch as Defendant has granted summary judgment on its third party claim for contractual indemnification.
The parties shall appear in the Settlement Conference Part, courtroom 16,0, on July 30, 2019 at 9:15am. This constitutes the decision and order of the Court.