New York Supreme and/or Appellate Courts Appellate Division, First Department
December 6, 2012
CELENE BETANCUR, PLAINTIFF,
LINCOLN CENTER FOR THE PERFORMING ARTS, INC., ET AL., DEFENDANTS-APPELLANTS, JDP MECHANICAL, INC., DEFENDANT-RESPONDENT. LINCOLN CENTER FOR THE PERFORMING ARTS, INC., ET AL., THIRD-PARTY PLAINTIFFS-APPELLANTS, STAR-DELTA ELECTRIC, LLC, THIRD-PARTY DEFENDANT-RESPONDENT. LINCOLN CENTER FOR THE PERFORMING ARTS, INC., ET AL., SECOND THIRD-PARTY PLAINTIFFS-APPELLANTS, JDP MECHANICAL, INC.,
SECOND THIRD-PARTY DEFENDANT-RESPONDENT. [AND A THIRD THIRD-PARTY ACTION]
Betancur v Lincoln Ctr. for the Performing Arts, Inc.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 6, 2012
Gonzalez, P.J., Sweeny, Richter, Roman, Clark, JJ.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered January 11, 2012, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment as to liability under Labor Law § 240(1) as against defendants Lincoln Center for the Performing Arts, Inc. and Lincoln Center Development Project Inc. (together, Lincoln Center) and Integrated Building Controls, Inc. (IBC), granted defendant JDP Mechanical, Inc.'s (JDP) motion for summary judgment dismissing the complaint and all cross claims against it, denied Lincoln Center and the City's motion for summary judgment on their cross claims for contractual indemnification against JDP, and granted third-party defendant Star-Delta Electric, LLC's motion for summary judgment dismissing Lincoln Center and the City's cross claims for contractual indemnification against it, unanimously modified, on the law, to deny JDP's motion for summary judgment as to the common-law negligence cause of action and the cross claims for common-law and contractual indemnification and contribution against it, to reinstate JDP's third third-party action, and to grant Lincoln Center and the City's cross motion to the extent of awarding them conditional summary judgment on their contractual indemnification claim against JDP, and otherwise affirmed, without costs.
Plaintiff testified that the ladder she stood on inexplicably wobbled beneath her, causing her to fall and be injured, and there is no evidence in the record from which it could reasonably be inferred that she was the sole proximate cause of her injuries (see Harrison v V.R.H. Constr. Corp., 72 AD3d 547 [1st Dept 2010]).
The record does not support a finding that JDP was a statutory agent for purposes of Labor Law § 240(1) (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 292-293 ). JDP's contract with Lincoln Center Development Project Inc. (Development) limited its responsibilities and potential liability to the work it was hired to perform and/or oversee, which did not include plaintiff's work; plaintiff's work was performed under a separate contract between Development and IBC. Nor is there evidence that JDP controlled the means and methods of plaintiff's work or that it assumed overall authority to correct unsafe work conditions at the project site. However, there is evidence that the temporary flooring on which the ladder rested was a "floating system" and therefore could move, and that JDP was responsible, in part, for selecting the materials for the flooring. Since factual issues exist whether the temporary flooring contributed to plaintiff's accident and whether JDP was negligent in selecting the materials for the flooring, the cause of action for common-law negligence and the cross claims for indemnification and contribution should not be dismissed as against JDP. There is also evidence that Development approved the installation of the flooring. Thus, Lincoln Center and the City are entitled to conditional summary judgment on their contractual indemnification claim against JDP.
Star-Delta is not contractually obligated to indemnify Lincoln Center and the City for claims arising out of any negligence on its part. While Star-Delta's subcontract with IBC incorporates the "General Conditions" of IBC's contract with Development, which include an indemnification provision, it does not contain an express agreement by Star-Delta to indemnify Lincoln Center and the City (see Bussanich v 310 E. 55th St. Tenants, 282 AD2d 243 [1st Dept 2001]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 6, 2012
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