July 2, 2013
Daniel Purcell, et al., Plaintiffs-Respondents-Appellants,
Metlife Inc., et al., Defendants-Respondents, Brause Realty Inc., Defendant. Metlife Inc., et al., Third-Party Plaintiffs-Respondents, North Eastern Fabricators, Inc., Third-Party Defendant-Appellant-Respondent. [And a Second Third-Party Action]
Malapero & Prisco, LLP, New York (Frank J. Lombardo of counsel), for appellant-respondent.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for respondents-appellants.
Morris Duffy Alonso & Faley, New York (Anna J. Ervolina of counsel), for Metlife Inc., respondent.
Lewis Brisbois Bisgaard & Smith, LLP, New York (Maureen M. Stampp of counsel), for JRM Construction Management LLC, respondent.
Mazzarelli, J.P., Acosta, Saxe, Freedman, Clark, JJ.
Order, Supreme Court, New York County (Paul Wooten, J.), entered April 24, 2012, which, to the extent appealed from as limited by the briefs, granted defendants-respondents' motions for summary judgment dismissing plaintiff Daniel Purcell's Labor Law § 200 claim as against defendant JRM Construction Management LLC and the Labor Law § 241(6) claim against both defendants to the extent predicated upon alleged violations of Industrial Code (12 NYCRR) §§ 23-1.7(e), 23-1.11 and 23-1.22(b)(2), granted third-party plaintiffs' motions for conditional summary judgment on their contractual indemnification claim against third-party defendant, and denied so much of third-party defendant's cross motion for summary judgment as sought dismissal of third-party plaintiffs' contractual indemnification claim against it, unanimously affirmed, without costs.
The motion court properly dismissed plaintiff's Labor Law § 200 claim against defendant JRM, because there is no evidence that JRM supervised the means or methods of plaintiff's work (see Hughes v Tishman Constr. Corp., 40 A.D.3d 305, 306 [1st Dept 2007]), and no evidence that it created or had actual or constructive notice of the allegedly dangerous condition that caused plaintiff's injury (see Berger v ISK Manhattan, Inc., 10 A.D.3d 510, 512 [1st Dept 2004]; see generally Cappabianca v Skanska USA Bldg. Inc., 99 A.D.3d 139, 144 [1st Dept 2012]).
The motion court also properly dismissed plaintiff's Labor Law § 241(6) claims to the extent indicated. Industrial Code (12 NYCRR) § 23-1.7(e)(1) is inapplicable, since plaintiff testified that he slipped on wet plywood while carrying a heavy steel beam, and there is no evidence in the record that plaintiff tripped. Moreover, plaintiff's accident did not take place in a "passageway" within the meaning of that provision; rather, it occurred in an open-work area on the eighth-floor roof setback of the work site (see Dalanna v City of New York, 308 A.D.2d 400, 401 [1st Dept 2003]). Section 23-1.7(e)(2) is inapplicable because the wet plywood on which plaintiff slipped is not "debris" or any of the other obstructions listed in that provision; plaintiff does not claim to have slipped or tripped on any scattered tools or other materials (see Johnson v 923 Fifth Ave. Condominium, 102 A.D.3d 592, 593 [1st Dept 2013]). Section 23-1.11 is inapplicable, since plaintiff does not claim that his accident was caused by defects in the lumber and nail fastenings used in the construction of the plywood (see Maldonado v Townsend Ave. Enters., Ltd. Partnership, 294 A.D.2d 207, 208 [1st Dept 2002]). Section 23-1.22(b)(2) is also inapplicable, since the plywood is neither a runway nor a ramp (see Gray v City of New York, 87 A.D.3d 679, 680 [2d Dept 2011], lv denied 18 N.Y.3d 803 ).
The motion court correctly found that third-party plaintiffs are entitled to conditional summary judgment on their contractual indemnification claim against third-party defendant. The indemnity provision at issue does not violate General Obligations Law § 5-322.1, as it does not require third-party defendant to indemnify third-party plaintiffs for their own negligence (cf. Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 794 ).