New York Supreme Court Appellate Division, First Department
December 13, 2012
KAIMCHAND DOODNATH, PLAINTIFF-APPELLANT,
THE MORGAN CONTRACTING CORP., ET AL., DEFENDANTS-RESPONDENTS-APPELLANTS. THE MORGAN CONTRACTING CORP., ET AL., THIRD-PARTY PLAINTIFFS-APPELLANTS, REGIONAL SCAFFOLDING & HOISTING CO., INC., THIRD-PARTY DEFENDANT-RESPONDENT. THE MORGAN CONTRACTING CORP., ET AL., SECOND THIRD-PARTY PLAINTIFFS-APPELLANTS, AWR GROUP, INC., SECOND THIRD-PARTY DEFENDANT-RESPONDENT. AWR GROUP, INC., THIRD THIRD-PARTY PLAINTIFF-RESPONDENT, DIO RESTORATION, INC., THIRD THIRD-PARTY DEFENDANT-RESPONDENT.
Doodnath v Morgan Contr. Corp.
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 13, 2012
Gonzalez, P.J., Mazzarelli, Acosta, Roman, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered September 1, 2011, which, to the extent appealed and as limited by the briefs, granted the summary judgment motion of defendants/third-party plaintiffs/second third-party plaintiffs The Morgan Contracting Corp. (Morgan) and Cornell University (Cornell) (collectively Morgan/Cornell) dismissing plaintiff's complaint and all cross-claims against them, denied Morgan/Cornell's motion for summary judgment on their alleged contractual indemnification claims against third-party defendant Regional Scaffolding & Hoisting Co., Inc. (Regional), and granted third-party defendant/third third-party plaintiff AWR Group, Inc.'s (AWR Group) motion for summary judgment dismissing Morgan/Cornell's second third-party complaint and all cross-claims against it, unanimously affirmed, without costs.
Plaintiff, a truck driver employed by defendant subcontractor Regional, was injured while he was stacking planks and panels from a dismantled sidewalk bridge and placing them in Regional's flatbed truck. He was holding a 100-pound, 4' by 8' panel, standing in the back of the truck when his right foot slipped on a wet, dirty plank that had previously been placed on a pile in the truck. Cornell, as property owner, and Morgan, as general contractor, were entitled to summary judgment dismissing plaintiff's complaint and the cross-claims against them alleging violations of Labor Law §§ 200 and 241(6). The evidence demonstrates that Regional controlled the activity of its workers during the disassembly of the sidewalk bridge and the stacking of the bridge materials and that plaintiff was injured as a result of the manner in which he performed his work. There is no evidence that Morgan or Cornell controlled the manner in which the work was performed. In addition, Morgan and/or Cornell lacked timely notice of the specific condition which allegedly caused plaintiff to fall (i.e., his stacking and stepping on a purported slippery plank in the back of Regional's truck) (see generally Rizzuto v LA Wegner Contracting Co., Inc., 91 NY2d 343, 352 ; Cahill v Triborough Bridge & Tunnel Authority, 31 AD3d 347, 350-351 [1st Dept 2006]).
Plaintiff's Labor Law 241(6) claim, predicated upon an alleged violation of Industrial Code § 23-1.7(d), is similarly unavailing. Plaintiff was not caused to slip due to a slippery work surface, but rather because he placed his right foot onto an allegedly wet and dirty plank that was stacked on top of other planks, 16 inches off the surface of the truck bed (see generally Bond v York Hunter Constr., Inc., 270 AD2d 112 [1st Dept 2000], affd 95 NY2d 883 ; Francis v Aluminum Co. of Am., 240 AD2d 985 [3d Dept 1997]; Basile v ICF Kaiser Engrs. Corp., 227 AD2d 959 [4th Dept 1996]).
Morgan/Cornell's arguments for summary judgment on their claims for contractual indemnification from Regional and AWR Group in the third-party action and second third-party action, respectively, are moot (see generally Mayes v UVI Holding LLC, 301 AD2d 409 [1st Dept 2003]; DiGiulio v City of Buffalo, 237 AD2d 938, 940 [4th Dept 1997]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 13, 2012
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