Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sullivan v. New York Athletic Club of City of New York

Supreme Court of New York, Second Department

June 20, 2018

John Sullivan, plaintiff-respondent-appellant,
v.
New York Athletic Club of City of New York, defendant third-party plaintiff-respondent, Talisen Construction Corporation, defendant-respondent-appellant; Premier Woodcraft, Ltd., third-party defendant-appellant-respondent. Index No. 702984/12

          Argued-March 9, 2018

          D55693 O/hu

          Andrea G. Sawyers, Melville, NY (Dominic P. Zafonte of counsel), for third-party defendant-appellant-respondent.

          Weiss & Rosenbloom, P.C., New York, NY (Barry D. Weiss of counsel), for plaintiff-respondent-appellant.

          Baker Greenspan & Bernstein, Bellmore, NY (Robert L. Bernstein, Jr., of counsel), for defendant-respondent-appellant.

          Litchfield Cavo, LLP, New York, NY (Edward M. Fogarty, Jr., of counsel), for defendant third-party plaintiff-respondent.

          WILLIAM F. MASTRO, J.P. MARK C. DILLON JOSEPH J. MALTESE HECTOR D. LASALLE, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the third-party defendant appeals, and the plaintiff and the defendant Talisen Construction Corporation separately cross-appeal, from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered January 11, 2016. The order, insofar as appealed from, denied those branches of the third-party defendant's motion which were for summary judgment dismissing (1) the cause of action alleging a violation of Labor Law § 240(1), (2) the third-party causes of action for contractual indemnification and alleging breach of an agreement to procure insurance, and (3) the cross claims seeking contractual indemnification and alleging breach of an agreement to procure insurance asserted against it by the defendant Talisen Construction Corporation. The order, insofar as cross-appealed from by the plaintiff, denied the plaintiffs cross motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). The order, insofar as cross-appealed from by the defendant Talisen Construction Corporation, denied that defendant's cross motion for summary judgment on its cross claim for contractual indemnification against the third-party defendant.

         ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying those branches of the third-party defendant's motion which were for summary judgment dismissing (a) the cause of action alleging a violation of Labor Law § 240(1) and (b) the third-party cause of action and the cross claim for contractual indemnification, except insofar as they seek costs and expenses related to defending the action, and substituting therefor a provision granting those branches of the third-party defendant's motion, and (2) by deleting the provision thereof denying that branch of the motion of the defendant Talisen Construction Corporation which was for summary judgment on so much of its cross claim for contractual indemnification as sought costs and expenses related to defending the action, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

         The defendant New York Athletic Club of City of New York (hereinafter NYAC) hired the defendant Talisen Construction Corporation (hereinafter Talisen) as a general contractor to renovate a bathroom on NYAC's premises. In turn, Talisen hired the plaintiffs employer, the third-party defendant, Premier Woodcraft, Ltd. (hereinafter Premier), as a subcontractor for the bathroom renovation. Talisen agreed to indemnify NYAC, and Premier agreed to indemnify both Talisen and NYAC "[t]o the fullest extent permitted by law, " including the payment of legal fees and costs arising from defending an action in connection with the work to be performed. Premier also agreed to purchase and maintain insurance that included Talisen and NYAC as additional insureds. Premier obtained insurance, which included a blanket additional insured contractors endorsement that amended the entities to be insured "to include any person or organization that [it] agree[d] in a 'written contract requiring insurance' to include as an additional insured, " but which did not name any specific entity.

         As part of their work in renovating the bathroom, the plaintiff and a coworker were carrying a heavy beam on their shoulders from their truck located outside of the premises to the bathroom. The beam had to be brought into the building through the front entrance and then down a set of steps. The plaintiff felt his "knee go forward" as he neared the bottom of the steps with the beam on his shoulder, and he subsequently dropped the beam and fell to the floor. The plaintiff sustained a left knee quadriceps tendon rupture, which his medical expert opined was caused by "the excessive load of the steel beam he was carrying on his body coupled with the activity of descending stairs."

         The plaintiff commenced this action against Talisen and NYAC, alleging violations of Labor Law §§ 200, 240(1), and 241(6) and common-law negligence. NYAC commenced a third-party action against Premier, and Talisen cross-claimed against Premier, for common-law and contractual indemnification and contribution, and alleging breach of the agreements to procure insurance.

         Premier moved for summary judgment dismissing, among other things, the Labor Law § 240(1) cause of action and the third-party causes of action and cross claims for contractual indemnification and alleging breach of the agreements to procure insurance. Talisen cross-moved for summary judgment on its cross claim for contractual indemnification against Premier. Additionally, the plaintiff cross-moved for summary judgment on the issue of liability on his cause of action alleging a violation of Labor Law § 240(1). The Supreme Court denied summary judgment to the various parties insofar as it found that there were triable issues of fact regarding the alleged violation of Labor Law § 240(1) and the causes of action sounding in contractual indemnification and breach of the agreements to procure insurance. Premier appeals, and the plaintiff and Talisen separately cross-appeal.

         "The extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do 'not encompass any and all perils that may be connected in some tangential way with the effects of gravity'" (Nieves v Five Boro A.C. & Refrig. Corp.,93N.Y.2d914, 915-916, quoting Ross v Curtis-Palmer Hydro-Elec. Co.,81 N.Y.2d 494, 501 [emphasis omitted]). Rather, the statute was designed to prevent accidents in which a protective device "'proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person'" (Runner v ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.