JANE HASTEDT, AS TESTATRIX OF THE ESTATE OF MARK HASTEDT, DECEASED, AND JANE HASTEDT, INDIVIDUALLY, PLAINTIFF-RESPONDENT,
BOVIS LEND LEASE HOLDINGS, INC., GEORGE A. NOLE & SON, INC., AND CAMDEN CENTRAL SCHOOL DISTRICT, DEFENDANTS-RESPONDENTS-APPELLANTS. BOVIS LEND LEASE HOLDINGS, INC., AND CAMDEN CENTRAL SCHOOL DISTRICT, THIRD-PARTY PLAINTIFFS-RESPONDENTS-APPELLANTS,
K.C. MASONRY, INC., THIRD-PARTY DEFENDANT-APPELLANT-RESPONDENT. GEORGE A. NOLE & SON, INC., THIRD-PARTY PLAINTIFF- RESPONDENT-APPELLANT,
K.C. MASONRY, INC., THIRD-PARTY DEFENDANT-APPELLANT-RESPONDENT.
SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF
COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT-RESPONDENT.
MYERS KREINES GROSS HARRIS, P.C., NEW YORK CITY (PATRICK M.
CARUANA OF COUNSEL), FOR DEFENDANTS-RESPONDENTS-APPELLANTS
AND THIRD-PARTY PLAINTIFFS-RESPONDENTS-APPELLANTS BOVIS LEND
LEASE HOLDINGS, INC. AND CAMDEN CENTRAL SCHOOL DISTRICT.
OSBORN, REED & BURKE, LLP, ROCHESTER (CLAIRE G. BOPP OF
COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT AND THIRD-PARTY
PLAINTIFF-RESPONDENT-APPELLANT GEORGE A. NOLE & SON, INC.
& GENIS, BRONX (ALEXANDER J. WULWICK OF COUNSEL), FOR
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND
from an order of the Supreme Court, Oneida County (Samuel D.
Hester, J.), entered August 10, 2015. The order, among other
things, granted that part of plaintiff's motion seeking
summary judgment on liability pursuant to Labor Law §
240 (1) against defendants George A. Nole & Son, Inc. and
Camden Central School District.
hereby ORDERED that the order so appealed from is unanimously
modified on the law by denying in its entirety
plaintiff's motion for summary judgment on the Labor Law
§ 240 (1) cause of action, and granting those parts of
the motion of defendants-third-party plaintiffs Bovis Lend
Lease Holdings, Inc. (Bovis) and Camden Central School
District seeking dismissal of the amended complaint against
Bovis in its entirety, contractual indemnification for Bovis
from defendant-third-party plaintiff George A. Nole &
Son, Inc., and dismissal of the cross claim of
defendant-third-party plaintiff George A. Nole & Son,
Inc. insofar as it seeks contractual indemnification from
Bovis, and as modified the order is affirmed without costs.
Plaintiff's decedent (decedent) was injured and
ultimately died as a result of injuries sustained in a fall
from either a ladder or a scaffold while performing work for
his employer, third-party defendant, K.C. Masonry, Inc.
(K.C.), on a school building owned by defendant-third-party
plaintiff Camden Central School District (Camden). Decedent
fell from a ladder or scaffolding while he was placing
plastic sheeting used to protect masonry work that had been
completed at a lower level. The ladder and scaffold were
supplied and placed by employees of K.C. Decedent was a
foreman on the job for K.C. on the day of the accident. Other
than decedent, there were no witnesses to decedent's
fall. Defendant-third-party plaintiff George A. Nole &
Son, Inc. (Nole) was the general contractor and
defendant-third-party plaintiff Bovis Lend Lease Holdings,
Inc. (Bovis) was the construction manager on the project.
commenced this action seeking damages for, inter alia, a
violation of Labor Law § 240 (1) and thereafter moved
for partial summary judgment on the issue of liability
thereunder. K.C. cross-moved for, inter alia, summary
judgment dismissing the amended complaint. Bovis and Camden
jointly moved, and Nole also moved for, inter alia, summary
judgment dismissing the amended complaint against them. As a
preliminary matter, we note that only the section 240 (1)
cause of action and indemnification thereunder is at issue on
appeal. Supreme Court, inter alia, granted plaintiff's
motion with respect to Camden and Nole, but denied it with
respect to Bovis, and correspondingly denied those parts of
the cross motion of K.C., the joint motion of Bovis and
Camden (joint motion), and the motion of Nole seeking summary
judgment dismissing the section 240 (1) cause of action. We
agree with defendants and K.C. that the court erred in, inter
alia, granting plaintiff's motion to the above extent,
and we therefore modify the order accordingly.
plaintiff is entitled to summary judgment under Labor Law
§ 240 (1) by establishing that he or she was subject to
an elevation-related risk, and [that] the failure to provide
any safety devices to protect the worker from such a risk
[was] a proximate cause of his or her injuries' "
(Bruce v Actus Lend Lease, 101 A.D.3d 1701, 1702).
Here, it is undisputed that the safety ladder used by
decedent did not tip, and that the scaffolding did not
collapse, tip, or shift. Decedent, himself the only witness
to the accident, was unable to provide any testimony or
statement concerning how the accident happened. Thus, we note
that this case is unlike those cases in which the
plaintiff's version of his or her fall is uncontroverted
because the plaintiff is the only witness thereto (see
e.g. Boivin v Marrano/Marc Equity Corp., 79 A.D.3d 1750,
1750; Evans v Syracuse Model Neighborhood Corp., 53
A.D.3d 1135, 1136-1137; Abramo v Pepsi-Cola Buffalo
Bottling Co., 224 A.D.2d 980, 981).
now axiomatic that "[t]he simple fact that plaintiff
fell from a ladder [or a scaffold] does not automatically
establish liability on the part of [defendants]"
(Beardslee v Cornell Univ., 72 A.D.3d 1371, 1372).
Thus, we conclude that the court erred in determining that
plaintiff met her initial burden on her motion by simply
establishing that decedent fell from a height. We further
conclude that plaintiff's submissions raise triable
issues of fact as to, inter alia, how the accident happened,
from where decedent fell-the ladder or the scaffold, and
whether a violation of Labor Law § 240 (1) occurred. We
therefore conclude that plaintiff failed to meet her initial
burden on her motion (see Wonderling v CSX Transp.,
Inc., 34 A.D.3d 1244, 1245), and the motion should have
been denied regardless of the sufficiency of the opposing
papers (see generally Winegrad v New York Univ.
Med. Ctr., 64 N.Y.2d 851, 853). Even assuming,
arguendo, that plaintiff met her initial burden, we conclude
that defendants and K.C. raised issues of fact with respect
to, inter alia, how the accident happened, from where
decedent fell-the ladder or the scaffold, and whether a
violation of Labor Law § 240 (1) occurred (see
generally Singh v Six Ten Mgt. Corp., 33 A.D.3d 783,
of the joint motion, Bovis sought a determination that it was
not Camden's agent for purposes of Labor Law § 240
(1), and that it is therefore entitled to summary judgment
dismissing the amended complaint against it. The court denied
that part of the joint motion. That was error, and we
therefore further modify the order accordingly. We conclude
that Bovis established its entitlement to that determination
as a matter of law (see Hargrave v LeChase Constr.
Servs., LLC, 115 A.D.3d 1270, 1271; Phillips v
Wilmorite, Inc., 281 A.D.2d 945, 946). Pursuant to the
express terms of the contract between Bovis and Camden, Bovis
had no control over the means or methods of the performance
of the work by contractors or subcontractors, and it also had
no control over safety precautions for the workers at the
construction site (see Hargrave, 115 A.D.3d at 1271;
cf. Griffin v MWF Dev. Corp., 273 A.D.2d 907,
908-909). In opposition, plaintiff failed to raise a triable
issue of fact whether Bovis was an agent of Camden for the
purpose of holding Bovis liable under section 240 (1)
(see Zuckerman v City of New York, 49 N.Y.2d 557,
562). To the extent that Bovis contends in the alternative
that it is entitled to indemnification under Nole's
contract with K.C. as an "agent" of the owner, our
determination herein disposes of that contention.
to K.C.'s contention, we further conclude that the court
properly granted those parts of the joint motion and
Nole's motion for summary judgment seeking contractual
indemnification from K.C. for Camden and Nole. In support of
their respective joint motion and motion, the parties met
their respective initial burdens by submitting the contract
between Nole and K.C., which contains clauses providing for
K.C.'s indemnification of the owner and general
contractor-Camden and Nole herein, and by establishing as a
matter of law that Camden and Nole were not negligent; that
any liability on the part of either of them for the injuries
sustained by decedent is vicarious only; and that they
exercised no supervision or control over the work of decedent
(see Lazzaro v MJM Indus., 288 A.D.2d 440, 441). In
opposition, K.C. failed to raise a triable issue of fact
whether the contractual indemnification provisions should not
be enforced (see Zuckerman, 49 N.Y.2d at 562).
agree with Bovis that the court erred in denying that part of
the joint motion seeking contractual indemnification from
Nole, and we therefore further modify the order accordingly.
Section 3.18.1 of the General Conditions of the Contract,
incorporated into Nole's contract with Camden, provides
that Nole was obligated to indemnify the construction
manager, among others, from any claims, damages, losses, and
expenses "arising out of or resulting from performance
of the Work... to the extent caused in whole or in part by
negligent acts or omissions of the Contractor, a
Subcontractor, anyone directly or indirectly employed by them
or anyone for whose acts they may be liable, regardless of
whether or not such claim, damage, loss or expense is caused
in part by a party indemnified hereunder." Thus, Bovis
demonstrated its prima facie entitlement to summary judgment
on its claim for contractual indemnification from Nole
(see Capstone Enters. of Port Chester, Inc. v Board of
Educ. Irvington Union Free Sch. Dist., 106 A.D.3d 853,
855). In opposition, Nole failed to raise a triable issue of
fact (see Zuckerman, 49 N.Y.2d at 562). We also
agree with Bovis that the court erred ...