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United States District Court, Southern District of New York

April 16, 2003


The opinion of the court was delivered by: George B. Daniels, United States District Judge


This is an action by plaintiff, Jose Ramon Palen, against defendant I.T.W. Mortgage Investments III, Inc. ("ITW"), the owners of the building where plaintiff sustained personal injuries, and co-defendant Corporate interiors, Inc. ("Interiors"), the general contractor hired by ITW, for violations of sections 240, 241, and 200 of the New York Labor Law. ITW has also filed cross-claims against co-defendant interiors for contractual indemnification and breach of contract for failure to procure insurance. Presently before this Court is plaintiffs motion for partial summary judgment on the issue of liability pursuant to Labor Law section 240 against both defendants. Defendant ITW has moved for summary judgment dismissing plaintiffs allegations that ITW violated Labor Law sections 200, 241, and 240. Defendant ITW has also moved for summary judgment on its cross-claims against co-defendant Interiors for contractual indemnification and breach of contract for failure to procure insurance.


It is undisputed that on September 2, 1997, a contract was entered into between ITW and the general contractor, Interiors. Pursuant to the terms of the contract, Interiors was hired to complete a renovation of office space in a building owned by ITW. Interiors then contracted with Albert Pearlman, Inc. ("Pearlman"), plaintiffs employer, to do the painting.

On October 2, 1997, plaintiff was assigned by his employer to paint on the 10th floor of the building described above. The painting being done on that floor was in connection with the extensive office construction and renovation then under way. Plaintiff was working alone in the room. The only equipment he had been issued was a five foot wooden "A" frame ladder. The room had a window frame which was also to be painted. Directly in front of the window and under the window sill was a radiator, three feet high. The radiator, which had a cover, extended two to three feet into the room. Plaintiff extended the feet of the ladder and placed the fully extended ladder next to the radiator. He then climbed the ladder and stepped from the ladder onto the radiator cover in order to paint the window frame. Rather than stand on the ladder and lean over the radiator to paint the window, plaintiff stood on the radiator itself, using it as a work platform. When he finished painting the frame, plaintiff stepped back onto a rung of the ladder from the radiator cover. Before he could climb down, the ladder tilted when he transferred his weight to it from the radiator. He and the ladder fell to the floor. Plaintiff landed heavily on his right shoulder, sustaining injuries.

Plaintiff contends that the ladder he used was not secured or tied to any stable structure to prevent it and him from falling. Plaintiff argues that the ladder did not come with rubber safety guards on its feet to prevent slipping. Nor was any assistance provided in holding the ladder while plaintiff stabilized himself.

Defendant ITW contends that because they did not exercise supervision, direction or control over plaintiff, they are exempt from Labor Law sections 200, 241, and 240. They also contend that they should be granted summary judgment on their cross-claim for contractual indemnification as well as breach of contract for co-defendant interiors' failure to procure insurance.

Defendant Interiors has not responded directly to plaintiff's motion. It has, however, responded to defendant ITW's motion, asserting that summary judgment should be denied on ITW's cross-claims because a genuine issue of material fact exists as to whether ITW's negligence was a cause of plaintiffs accident. interiors points to plaintiff's deposition testimony in which plaintiff describes the room's floor as "not very well level." (Headley Affirm. at 2). Interiors argues that the floor's unevenness was a structural defect in ITW's building which existed prior to the contract between ITW and interiors, and that this unevenness contributed to plaintiffs accident.


Summary judgment should be granted only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All facts, inferences, and ambiguities must be viewed in the light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the moving party meets his burden, the nonmoving party has the burden of presenting "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586.

Plaintiff argues that he is entitled to summary judgment on the issue of liability against both ITW and interiors. To obtain summary judgment on the issue of liability under section 240(1) of New York's Labor Law*fn1 a plaintiff must show "(1) that the statute has been violated as a matter of law; and (2) that this violation was the proximate cause of plaintiffs injuries." Gomez v. Preferred Rentals, 1997 WL 749389, at *3 (S.D.N.Y. Dec. 3, 1997). Generally, the lack of, or defect in, a safety device establishes a violation of the statute. Id. of course, the plaintiff must also show that the statute applies. See Morales v. Northwest Airlines, Inc., 1996 WL 556986, at *3 (S.D.N.Y. Oct. 1, 1996). Section 240 imposes absolute liability on owners and general contractors for any breach of this section that is the proximate cause of the plaintiffs injuries, regardless of the plaintiff's contributory negligence. Rocovich v. Consol. Edison Co., 583 N.E.2d 932, 934 (N.Y. 1991). Further, the duty of the owner or general contractor is nondelegable, and that party may be found liable even though it exercised no supervision or control over the work site. Rivera v. K & B Furniture Co., 753 N.Y.S.2d 82, 82 (App. Div. 2003).

In order for plaintiff to prevail on summary judgment on the issue of liability under section 240, he must first prove that the statute has been violated as a matter of law. In Rocovich, the leading case dealing with the nature of the occupational hazards afforded the absolute protection of section 240(1), the Court of Appeals addressed the types of hazards contemplated by section 240(1):

The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured.
583 N.E.2d at 934.

It is because of the particular hazards of working in these special circumstances that workers are given the exceptional protection provided by section 240(1). See id. In the present case, plaintiff was painting a window frame which was at a higher elevation than the floor. The work he was engaged in, therefore, falls within the ambit of Labor Law section 240(1).

While plaintiff was provided with a ladder, as required by the statute, the ladder was not tied to any structure, did not have rubber guards on its feet, and was not being held by anyone else. "The failure to secure the ladder to ensure that it remained steady and erect while the plaintiff was working on it constitutes a violation of Labor Law § 240(1) which results in the imposition of absolute liability upon the defendants for the plaintiffs injuries as a matter of law. . . ." Fernandez v. MHP Assoc., 591 N.Y.S.2d 835, 836 (App. Div. 1992 see also Novak v. BASF Corp., 869 F. Supp. 113, 117 (N.D.N.Y. 1994); Bryan v. City of New York, 614 N.Y.S.2d 554, 554 (App. Div. 1994); Urrea v. Sedgwick Ave. Assoc., 595 N.Y.S.2d 46, 46 (App. Div. 1993); MacNair v. Salamon, 606 N.Y.S.2d 152, 153 (App. Div. 1993).

ITW argues that defendants complied with section 240(1) by furnishing plaintiff with a ladder and that plaintiff has made no showing that the ladder was defective. ITW maintains that because plaintiff testified at his deposition that the ladder tipped and did not slip, the fact that there were no rubber anti-slip pads provided for the ladder is irrelevant. ITW then maintains that where the ladder is not otherwise shown to be defective, the issue of whether the ladder provided the plaintiff with proper protection is a question of fact for the jury. ITW's arguments, however, are misguided.

Defendants' duty was not merely to protect the ladder from slipping but to "secure the ladder" generally and to "ensure that it remained steady and erect while being used." Wasilewski v. Museum of Modern Art, 688 N.Y.S.2d 547, 547 (1999). Regardless of whether plaintiffs accident was the result of a slip or a tip of the ladder, "[i]t is plain that the ladder used by plaintiff was not an adequate safety device for the task plaintiff had been directed to perform." Dunn v. Consolidated Edison Co. of New York, 707 N.Y.S.2d 420, 420 (App. Div. 2000). The location of the radiator near the window frame required that plaintiff step back and forth from a ladder that had not been secured in any manner, and as such the ladder did not provide proper protection. Simply supplying the necessary safety equipment is not enough. The statute clearly states that the ladder must have been properly "placed, and operated as to give proper protection to a person so employed." N.Y. Lab. Law § 240(1) (McKinney 1986).

The defendants violated section 240(1) as a matter of law. No view of the evidence supports a contrary conclusion, and hence there is no issue of fact to be determined by a jury. ITW's argument, suggesting that the issue of adequacy is always one for the jury where the ladder has not been shown to be defective, is overly broad. The cases relied upon by ITW each involved situations where at least some evidence existed that plaintiffs accident was caused by something other than the adequacy of the equipment provided. See Weber v. 1111 Park Avenue Realty Corp., 676 N.Y.S.2d 174 (App. Div. 1998) (plaintiff sustained an electric shock while removing light cables); Romano v. Hotel Carlyle Owner's Corp., 641 N.Y.S.2d 50, 51 (App. Div. 1996) (evidence indicated that scaffolding did not move, collapse or otherwise failed to support plaintiff); Xirakis v. 1115 Fifth Avenue Corp., 641 N.Y.S.2d 45, 46 (App. Div. 1996) (question of fact existed as to plaintiffs credibility).

Finally, the Court must determine whether the defendants' violation of the statute was the proximate cause of plaintiffs injury. ITW asserts that there is some evidence indicating that plaintiffs actions may have been the sole and proximate cause of the accident. ITW argues that plaintiff did not advise his employer or anyone else that he needed a scaffold or other safety device to paint the window frame. in addition, ITW argues that the accident may have occurred due to the manner in which plaintiff stated he shifted his weight from the radiator to the ladder.*fn2

To the extent that ITW's arguments suggest that plaintiffs own negligence may have been at fault, New York courts have long held that section 240 "impose[s] upon employers or those directing the particular work to be done, a flat and unvarying duty," and "does not permit the worker's contributory negligence to be asserted as a defense." Koenig v. Patrick Constr. Co., 83 N.E.2d 133, 134, 135 (N.Y. 1948). Neither the wording of section 240 (1) nor the case law presented to this Court support the contention that plaintiff had any duty to notify defendants of the need for a scaffolding or some other equipment. Such a duty would contradict the very purpose served by section 240(1). As the New York Court of Appeals has noted:

Workmen such as the present plaintiff, who ply their livelihoods on ladders and scaffolds, are scarcely in a position to protect themselves from accident. They usually have no choice but to work with the equipment at hand, though danger looms large. The legislature recognized this and, to guard against the known hazards of the occupation, required the employer to safeguard the workers from injury caused by faulty or inadequate equipment.
Id. at 135.

ITW's reliance on Weininger v. Hagedorn, 695 N.E.2d 709 (N.Y. 1998), and Skalko v. Marshalls, Inc., et al., 646 N.Y.S.2d 140 (App. Div. 1996) does not help its cause. in both cases, evidence or testimony indicated that the proximate cause of the accident was not the adequacy of the equipment provided, but the plaintiffs conduct. In Skalko, evidence suggested that the scaffold provided was appropriate for the task given to plaintiff. The Court noted that the plaintiff had no difficulty with the scaffold prior to the accident and that he had gone up and down the scaffold six or seven times before the accident occurred. Skalko, 646 N.Y.S.2d at 141. In light of this, the plaintiff's testimony that he swung his whole body off the scaffold platform when the accident occurred suggested that plaintiffs conduct was the sole cause of the accident. Id.

The case before this Court is clearly different. The evidence is clear that the ladder provided to plaintiff was inadequate for the task to be performed. No other equipment was provided to plaintiff to allow him to safely paint the window frame. Plaintiffs unavoidable act of shifting his weight from the radiator to the ladder cannot be said to be the sole cause of plaintiffs injury.

This Court finds that ITW, owner of the premises, and Interiors, the general contractor, are both liable under section 240 of New York's Labor Law. Defendants violated the statute as a matter of law by failing to provide adequate equipment to secure the ladder from falling and this violation was the proximate cause of plaintiffs injuries. Therefore, plaintiffs motion for summary judgment on the issue of liability under section 240 is granted.

Plaintiff also brings a claim against ITW and Interiors under Labor Law section 200*fn3 and common law negligence. Where a claim under section 200 "arises out of alleged defects or dangers arising from a subcontractor's methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation." Bailey v. Bethlehem Steel Corp., 1994 WL 586944, *7 (W.D.N.Y. Oct. 4, 1994), citing Ross v. Curtis-Palmer Hydro-Elec. Co., 618 N.E.2d 82, 88 (N.Y. 1993). A property owner is usually found liable under section 200 when he is vicariously liable for the negligence of the independent contractor he has hired. Sometimes, however, an owner may be liable to injured workers under "the safe work place doctrine" for incidents which occur in areas over which an owner maintains control. Bailey, 1994 WL 586944 at *7 citing Bidetto v. New York City Housing Authority, 250 N.E.2d 735, 735 (N.Y. 1969). Plaintiff's claim for liability under section 200 overlaps several of his theories for common law negligence liability. Faced with summary judgment motions in similar situations, other courts have simultaneously analyzed claims under section 200 and common law negligence. Bailey, 1994 WL 586944 at *7; see also Comes v. New York State Elec. and Gas Corp., 592 N.Y.S.2d 478 (App. Div. 1993), aff'd, 631 N.E.2d 110 (N.Y. 1993). In light of the facts and theories of liability alleged in support of plaintiffs claims, a similar analysis is appropriate in the present case.

In applying these rules of law to the issue at hand, ITW cannot be found liable under section 200. Plaintiff testified that he received his instructions as to what work was to be performed and how to perform it from his supervisors who were both employees of Albert Pearlman, Inc. (Palen Dep. at 30-31). In addition, Interior's Vice President and field supervisor for the construction site testified that ITW had no supervision, direction or control over either the employees of interiors or the employees of Albert Pearlman, including plaintiff. (Pappas Dep. at 45). Interior's field supervisor also testified that ITW did not provide any of the tools, equipment or materials that were being used by interiors or the plaintiff. Id.

In light of the record, there is absolutely no evidence that ITW exercised the requisite supervision, direction and control to be found liable under common law negligence or Labor Law section 200. Therefore, this Court grants summary judgment to defendant ITW dismissing the portion of plaintiff's complaint seeking damages against ITW based on common law negligence and section 200 of the New York State Labor Law.

We now come to plaintiff's allegation under Labor Law section 241. As defendant ITW indicated in its motion papers, plaintiff's complaint alleges a violation of subsection (a) of section 241. However, a review of section 241 of the Labor Law clearly demonstrates there is no subdivision (a). Instead, section 241 has subdivisions 1 through 10. We agree with the defendant ITW that the only subdivision which would be applicable in this case would be subdivision (6).

In contrast to the first five subdivisions of section 241, in which the Legislature set out specific safeguards on its own, subdivision (6) does no more than broadly provide that the owner and contractor ensure that the work site is "so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety." N.Y. Lab. Law § 241(6) (McKinney 1986). In the case of Ross v. Curtis-Palmer Hydroelectric the New York State Court of Appeals determined that only a violation of a specific regulatory standard could give rise to an action under section 241(6). Ross, 618 N.E.2d 82, 86-88 (N.Y. 1993). The Court stated that to permit a plaintiff to use broad, non-specific, regulatory standards as a predicate for an action against a non-supervising owner or general contractor under Labor Law section 241(6) would seriously distort the scheme of liability for unsafe working conditions that has been developed in the case law. Id. at 88; see also Bailey, 1994 WL 586944 at *10.

Plaintiff does not allege a violation of any specific regulatory standard, nor does he allege any regulatory violation at all. Accordingly, plaintiffs allegation against ITW under Labor Law section 241 is dismissed.

The next issue to address is defendant ITW's claim that it is entitled to summary judgment against co-defendant Interiors on its claim for contractual indemnification. It is undisputed that, at the time of the accident, a contract was in effect between ITW and Interiors which required Interiors to indemnify ITW from and against all liability in connection with personal injury claims arising out of the performance of the contract.*fn4

Summary judgment has been found to lie where "[t]he contract between [owner] and [contractor] contains a broad indemnity clause under which [the contractor] is required to indemnify [the owner] against all claims arising out of the performance of the work. . . ." Smith v. Cassadaga Valley Cent. Sch. Dist., 578 N.Y.S.2d 747, 749 (App. Div. 1991). Such language "manifests a clear intention to indemnify." Id. It is well settled law that a right of contractual indemnification is uniformly granted in New York where there is no finding of negligence on the part of the owner. See Brown v. Two Exchange Plaza Partners, 556 N.E.2d 430, 433-34 (N.Y. 1990); Kelly v. Diesel Construction Division of Carl A. Morse, Inc., 315 N.E.2d 751, 752 (N.Y. 1974); Glielmi v. Toys R Us, 464 N.E.2d 981, 983 (N.Y. 1984).

As discussed earlier, the record indicates that ITW exercised no supervision, direction or control over the employees of interiors or over any of their subcontractors, including the plaintiff and his employer. Nor did ITW provide any of the tools or equipment. There is no basis, therefore, to find that ITW was negligent. Defendant Interiors, however, notes that according to plaintiffs deposition testimony, the floor in the room where plaintiff was working was uneven. in his October 28, 1999 deposition, plaintiff testified that "the floor was clean, but it was wood, and it was not very well level. It had before a carpet and a pad underneath the carpet, but they took it away, and there were pieces of pad hooked on the floor. That is why the ladder moved." (Palen Dep. at 15). Interiors asserts that the uneven floor was a structural defect that existed prior to the contract between Interiors and ITW and that it contributed to the accident.

As ITW correctly notes, however, plaintiffs testimony indicates that the ladder moved not because of some inherent defect in the floor but rather because of pieces of carpet pad that remained hooked to the floor after the carpet was removed. The field supervisor for Interiors testified at his deposition that the carpet was removed either by Interiors or by one of its subcontractors, and once completed was inspected by him. (Pappas Dep. at 14-17). If the floor was indeed left uneven because of remaining pieces of carpet pad, then the record indicates that the party responsible would have been Interiors, not ITW. This Court can find no negligence on the part of ITW. As a result, this Court grants ITW summary judgment against Interiors for contractual indemnification.

Finally, the last issue this Court must address is defendant's motion for summary judgment on the cross-claim for breach of contract to procure insurance. Co-defendant Interiors expressly contracted with ITW to procure liability insurance covering ITW from any liability.*fn5 Despite its contractual obligation, Interiors failed to purchase such insurance.

In Kinney v. G.W. Lisk Co., Inc., 556 N.E.2d 1090 (N.Y. 1990), the Court of Appeals affirmed a lower court's decision to grant summary judgment to a contractor on its third party action against the subcontractor for breach of contract due to the subcontractor's failure to procure liability insurance. The Court held that the amount of damages for the subcontractor's failure to procure the insurance should be measured by any resulting damages flowing from the breach, including the liability which the contractor owed to the plaintiff in that action. Kinney, 556 N.E.2d at 1092. The contract between ITW and Interiors is very clear on its face. In addition, Interiors has set forth no opposition to ITW's breach of contract claim. This Court therefore grants summary judgment on ITW's cross-claim for breach of contract.


Since plaintiffs injuries were proximately caused by the same type of circumstances that Labor Law section 240 seeks to protect against, both ITW and Interiors are liable. Plaintiffs motion for partial summary judgment on this issue is therefore GRANTED. However, because ITW did not have direct control or immediate supervisory responsibility over plaintiff or his employer, ITW's motion for summary judgment is GRANTED, dismissing plaintiffs allegation against ITW under Labor Law section 200. In addition, because plaintiff failed to allege a violation of a specific regulation promulgated under the statute, defendant ITW's motion for summary judgment dismissing plaintiffs claim under Labor Law section 241 is also GRANTED. Finally, ITW's motion for summary judgment on its indemnification and breach of contract claims against co-defendant Interiors is GRANTED.


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