New York Supreme Court Appellate Division, First Department
May 16, 2013
DOMINGOS MOUTA, ET AL., PLAINTIFFS-RESPONDENTS,
ESSEX MARKET DEVELOPMENT LLC, DEFENDANT-APPELLANT-RESPONDENT, JF CONTRACTING CORP., DEFENDANT-RESPONDENT-APPELLANT, MSS CONSTRUCTION CORP., DEFENDANT. ESSEX MARKET DEVELOPMENT LLC, THIRD-PARTY PLAINTIFF- APPELLANT-RESPONDENT, MARANGOS CONSTRUCTION CORP., THIRD-PARTY DEFENDANT- RESPONDENT-APPELLANT. JF CONTRACTING CORP., THIRD-PARTY PLAINTIFF- RESPONDENT-APPELLANT, MARANGOS CONSTRUCTION CORP., THIRD-PARTY DEFENDANT- RESPONDENT-APPELLANT.
Mouta v Essex Mkt. Dev. LLC
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 May 16, 2013
Andrias, J.P., Renwick, Freedman, Gische, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered January 31, 2012, which granted plaintiffs' motion for summary judgment as to liability under Labor Law § 240(1), denied defendant/third-party plaintiff JF Contracting Corp.'s (JF) motion for summary judgment dismissing the complaint as against it, for summary judgment on its claims for common-law and contractual indemnification and breach of contract against third-party defendant Marangos Construction Corp. (Marganos), to strike Marangos's answer for failure to provide insurance information, and to compel defendant/third-party plaintiff Essex Market Development LLC (Essex) to produce copies of its relevant insurance policies, and denied Essex's motion for summary judgment on its common-law and contractual indemnification claims against JF and Marangos, unanimously modified, on the law, to grant JF's motion for summary judgment dismissing as against it the Labor Law § 200 and common-law negligence claims and the Labor Law § 241(6) claims insofar as they are predicated on violations of Industrial Code (12 NYCRR) §§ 23-1.5, 23-1.8, 23-1.11, 23-1.15, 23-1.16, 23-1.17, 23-1.24, 23-5.3, 23-5.4, 23-5.5, 23-5.6, and 23-5.7, and for summary judgment on its contractual indemnification claims against Marangos, to conditionally grant its cross motion for summary judgment on its common-law indemnification claims against Marangos, and to deny Essex's motion for summary judgment on its indemnification claims against Marangos, with leave to renew, and, upon a search of the record, to grant summary judgment to Essex and defendant MSS Construction Corp. dismissing as against them the Labor Law § 241(6) claims insofar as they are predicated on the above-cited violations of the Industrial Code, and otherwise affirmed, without costs.
Plaintiff Domingos Mouta was injured when he stepped on a section of plywood platform that, unbeknownst to him, was being dismantled, and he fell from the fourth floor to the second. There is no question that plaintiff's was a "gravity-related . . . fall from a height," and that plaintiff was provided with no safety devices, such as a harness, to prevent the fall. Marangos's conclusory claims that safety devices were available are not sufficient to raise an issue of fact. Thus, defendants are liable for Mouta's injuries pursuant to Labor Law § 240(1) (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 ).
To the extent the Labor Law § 241(6) claim is predicated on Industrial Code (12 NYCRR) §§ 23-1.5 (general responsibilities of employers), 23-1.8 (personal protective equipment), 23-1.11 (lumber and nail fastenings), 23-1.15 (construction of safety railings), 23-1.16 (safety belts, harnesses, tail lines and lifelines), 23-1.17 (life nets), 23-1.24 (work on roofs), and 23-5.3, 5.4, 5.5, 5.6, and 5.7 (various types of scaffolds), it must be dismissed as against all defendants because these provisions either are too general to support a § 241(6) claim or are simply inapplicable to the facts of this case.
JF demonstrated that it did not supervise and control plaintiff's work or the area of the work site in which plaintiff's accident occurred, and therefore cannot be held liable for plaintiff's injuries under Labor Law § 200 or common-law negligence principles (Torkel v NYU Hosps. Ctr., 63 AD3d 587 [1st Dept 2009]). The record demonstrates that Marangos, plaintiff's employer, which pursuant to its contract with JF was responsible for site safety, was in charge of all aspects of the work at issue, including safety.
The contract between JF and Marangos obligated Marangos to indemnify JF against losses arising out of Marangos's negligent performance of its work. Since the record establishes that plaintiff's accident was not caused by any negligence on JF's part, that JF's liability is purely vicarious under Labor Law § 240(1), and potentially under § 241(6), and that Marangos was responsible for the accident, JF is entitled to summary judgment on its contractual indemnification claim against Marangos (see Correia v Professional Data Mgt., 259 AD2d 60, 64-65 [1st Dept 1999]). JF is also entitled to conditional summary judgment on its common-law indemnification claim against Marangos, subject to whether plaintiff is found to have suffered from a grave injury (see Hernandez v Argo Corp., 95 AD3d 782, 783 [1st Dept 2012]).
Essex failed to include a copy of the third-party complaint in its motion for summary judgment on its indemnification claims against Marangos and JF (see CPLR 3212[b]). We therefore affirm the denial of Essex's motion, without prejudice to renewal upon proper papers (see Krasner v Transcontinental Equities, 64 AD2d 551 [1st Dept 1978]). The court correctly denied JF's motion as to the insurance policies procured by Marangos and Essex. The Decision and Order of this Court entered herein on February 19, 2013 is hereby recalled and vacated (see M-1243 and M-1387 decided simultaneously herewith).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 16, 2013
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