Argued-June 1, 2017
& Kelner, New York, NY (Gail S. Kelner of counsel), for
Catalano Gallardo & Petropoulos, LLP, Jericho, NY
(Domingo R. Gallardo, Katherine A. Giovacco, Kathleen A.
Mullins, and June Retter of counsel), for defendants
Fischer LLP, New York, NY (Daniel Zemann, Jr., and Michael
Andreou of counsel), for third-party defendant-respondent.
M. LEVENTHAL, J.P. L. PRISCILLA HALL SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals, as limited by his brief, from so much of
an order of the Supreme Court, Queens County (McDonald, J.),
entered February 19, 2015, as denied his cross motion for
summary judgment on the issue of liability on the Labor Law
§ 240(1) cause of action and granted that branch of the
defendants third-party plaintiffs' motion which was for
summary judgment dismissing the causes of action alleging a
violation of Labor Law § 200 and common-law negligence,
and the defendants third-party plaintiffs cross-appeal, as
limited by their brief, from so much of the same order as
denied that branch of their motion which was for summary
judgment on their third-party cause of action against Forest
Electric Corp. for contractual indemnification.
that the order is modified, on the law, by deleting the
provision thereof granting that branch of the defendants
third-party plaintiffs' motion which was for summary
judgment dismissing the causes of action alleging a violation
of Labor Law § 200 and common-law negligence insofar as
asserted against the defendant third-party plaintiff Plaza
Construction Corp., and substituting therefor a provision
denying that branch of the motion; as so modified, the order
is affirmed insofar as appealed and cross-appealed from, with
one bill of costs to the third-party defendant Forest
Electric Corp., payable by the defendants third-party
defendant third-party plaintiff Plaza Construction Corp.
(hereinafter Plaza) was the construction manager on the
renovation of the interior of an office building owned by the
defendant third-party plaintiff UBS Real Estate Investments,
Inc. (hereinafter UBS). The plaintiff was employed by a
carpentry subcontractor and, at the time of the accident, his
assigned work required him to stand on a scaffold and install
track on a 12-foot-high ceiling. At the same time that the
plaintiff was working on the scaffold, the electrical
subcontractor, Forest Electric Corp. (hereinafter Forest),
was installing electrical outlets and cables inside the
raised floor, requiring the removal of certain floor tiles.
As the plaintiff walked along the scaffold to reach an area
of the ceiling, one of the wheels of the scaffold went into
an opening in the floor where tiles had been removed, and the
plaintiff fell off the scaffold.
plaintiff commenced this action against, among others, Plaza
and UBS and related entities (hereinafter collectively the
defendants). The defendants commenced a third-party action
against Forest, inter alia, for contractual indemnification.
The defendants moved for summary judgment dismissing the
complaint and for summary judgment on their third-party
causes of action against Forest. The plaintiff cross-moved
for summary judgment on the issue of liability on the Labor
Law § 240(1) cause of action. The Supreme Court, among
other things, granted that branch of the defendants'
motion which was for summary judgment dismissing the causes
of action alleging a violation of Labor Law § 200 and
common-law negligence, granted that branch of their motion
which was for summary judgment on the third-party cause of
action for contractual indemnification, and denied the
plaintiffs cross motion for summary judgment on the issue of
liability on the Labor Law § 240(1) cause of action.
Supreme Court properly denied the plaintiffs cross motion for
summary judgment on the issue of liability on the Labor Law
§ 240(1) cause of action. The plaintiff established his
prima facie entitlement to judgment as a matter of law by
demonstrating that he was engaged in work within the ambit of
the statute and that his injuries were proximately caused by
"the absence or inadequacy of a safety device of the
kind enumerated in the statute" (Narducci v
Manhasset Bay Assoc., 96 N.Y.2d 259, 268; see
Guanopatin v Flushing Acquisition Holdings, LLC, 127
A.D.3d 812, 813). Among other things, the plaintiff
demonstrated that he complained to his foreman that the
scaffold was "wobbly" on one side, but the foreman
told him to use the scaffold anyway, he was directed to work
on the scaffold without assistance in an area where the
raised floor had missing tiles, and he fell from the scaffold
because it either collapsed or tilted (see Viera v WFJ
Realty Corp., 140 A.D.3d 737, 738; Nimirovski v
Vornado Realty Trust Co., 29 A.D.3d 762; compare
Raynor v Quality Plaza Realty, LLC, 84 A.D.3d 774, 775,
with Jiron v China Buddhist Assn, 266 A.D.2d 347,
350). However, in opposition to the plaintiffs prima facie
showing, the defendants raised a triable issue of fact as to
whether his conduct was the sole proximate cause of his
injury because he was allegedly using the scaffold in an
unsafe and prohibited manner immediately prior to the
accident (see Berenson v Jericho Water Dist., 33
A.D.3d 574, 576; Storms v Dominican Coll. of
Blauvelt, 308 A.D.2d 575, 576; cf. Durmiaki v
International Bus. Machs. Corp., 85 A.D.3d 960, 961).
Supreme Court also properly denied the defendants' motion
for summary judgment on their third-party cause of action
against Forest for contractual indemnification because they
failed to eliminate all triable issues of fact as to whether
the accident arose out of or was connected with the
performance of Forest's work, pursuant to the terms of
the subject indemnification provision (see Shaughnessy v
Huntington Hosp. Assn, 147 A.D.3d 994; Soto v Alert
No. 1 Alarm Sys., 272 A.D.2d 466, 468; cf. Assevero
v Hamilton & Church Props., LLC, 131 A.D.3d 553,
558; Argueta v Pomona Panorama Estates, Ltd., 39
A.D.3d 785, 786).
Supreme Court erred, however, in determining that the
defendants were entitled to summary judgment dismissing the
causes of action alleging a violation of Labor Law § 200
and common-law negligence insofar as asserted against Plaza.
Where, as here, a claim arises out of the means and methods
of the work, a defendant may be held liable for common-law
negligence or a violation of Labor Law § 200 "only
if he or she had 'the authority to supervise or control
the performance of the work'" (Forssell v
Lerner, 101 A.D.3d 807, 808, quoting Ortega v
Puccia, 57 A.D.3d 54, 61; see Russin v Louis N.
Picciano & Son, 54 N.Y.2d 311, 316-317; Gonzalez
v Perkan Concrete Corp., 110 A.D.3d 955, 958-959).
"A defendant has the authority to supervise or control
the work for purposes of Labor Law § 200 when that
defendant bears the responsibility for the manner in which
the work is performed" (Ortega v Puccia, 57
A.D.3d at 62; see Cody v State of New York, 82
A.D.3d 925, 927).
the defendants failed to establish, prima facie, that Plaza
did not have the authority to exercise supervision and
control over the subject work. The defendants'
submissions demonstrated that Plaza, as the construction
manager, had a project superintendent at the work site on a
daily basis who was responsible for job coordination and
safety supervision. Plaza had the authority to stop work if a
particular activity or condition was unsafe, and to regulate
which workers and equipment were allowed in particular areas
of the work site. Moreover, Plaza's project
superintendent held weekly meetings with every subcontractor.
Although the superintendent testified at his deposition that
he gave directions to the subcontractors' supervisors,
rather than to the workers themselves, he could tell a
supervisor to immediately relay a safety-related instruction
to a worker at any given time. Under these circumstances, the
defendants' submissions failed to eliminate all triable
issues of fact as to whether Plaza was acting as the general
contractor and had the authority to supervise and control the
manner in which the plaintiff performed his work (see
Russin v Louis N. Picciano & Son, 54 N.Y.2d at
316-317; Zupan v Irwin Contr., Inc.,145 A.D.3d 715,
717; Kosinski v Brendan ...