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Ochoa v. State of Wisconsin Investment Board

Supreme Court of New York, Appellate Division, First Department

December 1, 2010

Alberto Ochoa, Plaintiff-Respondent,
v.
State of Wisconsin Investment Board, Defendant-Appellant. State of Wisconsin Investment Board, Third-party Plaintiff-Appellant, Astro Waterproofing & Restoration Corp., Third-party Defendant-Respondent.

Defendant/third-party plaintiff, State of Wisconsin Investment Board ("Wisconsin"), as limited by its briefs, appeals from those portions of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), dated September 21, 2009, which denied its motion for summary judgment (1) dismissing plaintiff's Labor Law § 200 and common law negligence claims, and (2) on its contractual indemnification claim against third-party defendant Astro Waterproofing & Restoration Corp. ("Astro").

Hunter, Jr., J.P., McKeon, Shulman, JJ

PER CURIAM.

Order (Raul Cruz, J.), dated September 21, 2009, insofar as appealed from, reversed, with one bill of $10 costs, Wisconsin's motion for summary judgment granted, plaintiff's Labor Law § 200 and common law negligence claims dismissed, and Wisconsin awarded summary judgment on its contractual indemnification claim against Astro. The Clerk is directed to enter judgment accordingly.

Civil Court improperly denied Wisconsin's motion for summary judgment dismissing plaintiff's common law negligence and Labor Law § 200 claims. To establish liability against an owner, such as Wisconsin, pursuant to Labor Law § 200 (or under common law negligence principles) where the injury occurred as a result of the manner in which the work was performed, plaintiff must establish that the owner exercised supervisory control over the work (see Lombardi v Stout, 80 N.Y.2d 290 [1992]; see also Mitchell v New York Univ., 12 A.D.3d 200 [2004]). Here, plaintiff was engaged in removing concrete with a drill when he was allegedly struck in the eye by a piece of metal. The record establishes, as a matter of law, that the work was supervised and controlled exclusively by plaintiff's employer, Astro, not by Wisconsin. Although Wisconsin personnel were at the site at various times to monitor the work to ensure it was being performed in accordance with contract specifications and to report safety violations, such facts are insufficient to support a finding of supervisory control (see Perri v Gilbert Johnson Enterprises, Ltd., 14 A.D.3d 681 [2005]; see also Hughes v Tishman Const. Corp., 40 A.D.3d 305 [2007]). Since plaintiff failed to adduce any evidence that Wisconsin exercised supervisory control over the injury-producing activity, summary judgment was warranted in Wisconsin's favor dismissing the Labor Law § 200 and common law negligence claims.

With respect to Wisconsin's claim for contractual indemnification against Astro, [1] the indemnity provision relied upon by Wisconsin is not void under General Obligations Law § 5-322.1 (see Brooks v Judlau Contr., Inc., 11 N.Y.3d 204 [2008]; see also Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 N.Y.2d 786 [1997]). In any event, even assuming that the provision did violate that statute, Wisconsin may nevertheless enforce the provision, since the evidence established, as a matter of law, that plaintiff's injuries were not attributable to negligence on Wisconsin's part and that its liability was vicarious and purely statutory (see Rhodes-Evans v 111 Chelsea LLC, 44 A.D.3d 430 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur.


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