The opinion of the court was delivered by: SWEET
Defendants Sheldon H. Solow ("Solow") and Avon Products, Inc. ("Avon") have moved for an order, pursuant to Fed. R.Civ. P. 56, granting summary judgment and dismissing the remaining claims brought against them by Plaintiffs Richard Joblon ("Joblon") and Magdalena Joblon (collectively, the "Joblons").
For the reasons set forth below, Solow's motion will be granted and Avon's motion will be denied.
The Parties and Prior Proceedings
The nature of the parties, prior proceedings, and facts underlying this action are set forth fully in the prior opinions of this Court, familiarity with which is assumed. Joblon v. Solow, 914 F. Supp. 1044 (S.D.N.Y. 1996); 921 F. Supp. 218 (S.D.N.Y. 1996).
The Joblons' complaint against Solow and Avon was filed on February 1, 1994, alleging diversity jurisdiction and a claim for personal injuries suffered when Joblon fell from a stepladder while working on Solow's property. Solow filed a third-party complaint against Geller Electric Construction and Maintenance, Inc. ("Geller") on June 2, 1994, and on August 8, 1994, Avon filed its cross-claim against Geller.
The remaining causes of action in the Joblons' complaint are grounded in negligence and generic allegations of violations of the New York Labor Law, the Occupational Safety and Health Act and the New York Industrial Code.
Avon filed its instant motion for summary judgment on May 16, 1996. Solow filed his instant motion for summary judgment on May 24, 1996. Oral argument was heard on September 11, 1996, whereupon the matter was deemed fully submitted.
In deciding a motion for summary judgment, "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988); see United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir. 1992). The facts as presented here are construed accordingly and are limited to the decision of these motions.
Joblon is an electrician employed by Geller, which had been Avon's "house electrician" since 1986. As house electrician, Geller performed routine electrical tasks at space leased by Avon in a building owned by Solow. Gordon, a foreman from Geller, was based full-time at Avon at the time of the incident that forms the basis of this action. Schwab and Joblon had been assigned there for ten consecutive working days.
The lease between Avon and Solow contains a clause indemnifying Solow for certain acts committed by Avon and also provides Solow with a right of reentry if Avon fails to make prompt rental payments. The parties have not identified any provisions of the lease that obligate Solow to inspect or maintain the premises.
On January 30, 1992, Joblon was directed by Gordon to install an electric wall clock in the Avon mail room on the twentieth floor, as had been requested by the Avon facilities supervisor. According to Avon's facilities manager, John Granton ("Granton"), a Geller electrician is on the Avon site daily. Granton testified at his deposition that he and two other Avon employees assigned work to Geller electricians, usually through a work order or work ticket, and that Geller electricians could not do work without authorization from Avon. Granton also testified that he or his associates at Avon would be informed of the progress or completion of requested work and would verify its completion. Defendant Solow had no involvement in requesting, supervising or approving the work done by Geller on this occasion, and there is no indication he ordinarily had any such involvement in such work.
From a storeroom within Geller's control, Joblon and Schwab got the equipment necessary to install the clock, including a six- or eight-foot A-frame ladder. Joblon proceeded to a small room adjacent to the mail room in order to run an electrical line from an outlet in that room through the wall to provide ...