DeSimone v. City of New York

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered January 4, 2013, which, insofar as appealed from as limited by the briefs, granted defendants’ motions for summary judgment dismissing plaintiff Paul DeSimone’s Labor Law § 241 (6) claim, granted the motions of Maximum Security Products Corp., doing business as Hillside Iron Works Corp. (Hillside), and Danco Electrical Contractor, Inc. (Danco) for summary judgment dismissing the common-law negligence claims against them, denied plaintiff’s cross motion to submit an expert disclosure pursuant to CPLR 3101 (d) (1) (i), and conditionally granted the motion of defendants Dormitory Authority of the State of New York (DASNY) and Bovis Lend Lease LMB, Inc. (Bovis) for contractual indemnification against defendant Hugh O’Kane Electric Co. LLC (O’Kane), unanimously modified, on the law, to reinstate the Labor Law § 241 (6) claim except as against defendant the City of New York, and otherwise affirmed, without costs.

The court dismissed the claim as against the City in view of plaintiff’s lack of opposition to its motion for summary judgment, and plaintiff does not present any basis to reverse this determination.

Plaintiffs Labor Law § 241 (6) claim was improperly dismissed on the ground that plaintiff was not covered under the statute. Plaintiff testified that he was an onsite project manager, employed by one of multiple general contractors on the subject construction project, whose job pertained to financial issues such as billing of subcontractors and revenue projections for the project. He testified that he tripped and fell in a vestibule he was walking through, intending to conduct a visual inspection of a condition alleged by O’Kane to support a back charge for “additional work,” in order to determine whether this claim was substantiated. Thus, plaintiff was not merely working in a building that happened to be under construction (cf. Coombs v Izzo Gen. Contr., Inc., 49 AD3d 468 [1st Dept 2008]). Rather, his job duties, including the inspection he was conducting at the time of the accident, were contemporaneous with and related to ongoing work on the construction project (see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878 , 881 [2003]). Thus, plaintiff was covered under the statute even though he did not perform the “labor-intense aspects of the project” (id.).

The court properly dismissed plaintiffs common-law negligence and Labor Law § 200 claims against defendants Hillside and Danco. Plaintiff seeks to hold Hillside liable for the placement of steel handrails in an area of the fifth floor of the subject building, causing him to trip over them. He seeks to hold Danco liable for inadequate temporary lighting in the area. However, both of these defendants met their burden by submitting evidence showing that they had no “authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition” (Russin v Louis N. Picciano & Son, 54 NY2d 311 , 317 [1981]; see Jehle v Adams Hotel Assoc., 264 AD2d 354 , 355 [1st Dept 1999]). The deposition testimony of project managers for Hillside and third-party defendant PII, LLC established that Hillside, a steel subcontractor, merely manufactured steel handrails and delivered them in a truck, which a Hillside driver would park outside the building as PII employees unloaded them. The remaining work to be done with these products, including their placement and storage in the building, was delegated by Hillside to PII pursuant to their subcontract.

The court properly conditionally granted summary judgment in favor of DASNY and Bovis’s contractual indemnification claim against O’Kane. The relevant provision of the contract between DASNY and O’Kane broadly required O’Kane to indemnify DASNY and Bovis for any injuries “caused by, resulting from, arising out of, or occurring in connection with the execution of the Work.” It is uncontested that plaintiffs injuries were caused by or occurred in connection with O’Kane’s work. Moreover, the indemnification provision precludes DASNY and Bovis from obtaining indemnification for their own negligence, if any. Under these circumstances, notwithstanding the pending negligence claims against DASNY and Bovis, the court properly granted conditional contractual indemnification (see Burton v CW Equities, LLC, 97 AD3d 462 [1st Dept 2012]; Hughey v RHM-88, LLC, 77 AD3d 520 , 522-523 [1st Dept 2010]).

Concur— Sweeny, J.E, Acosta, Saxe, Manzanet-Daniels and Clark, JJ.