Caban v. Plaza Construction Corp.

In an 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.

Ordered 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 plaintiffs.

The 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 plaintiff’s cross motion for summary judgment on the issue of liability on the Labor Law § 240 (1) cause of action.

The Supreme Court properly denied the plaintiff’s 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 NY2d 259 , 268 [2001]; see Guanopatin v Flushing Acquisition Holdings, LLC, 127 AD3d 812 , 813 [2015]). 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

The 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 AD3d 994 [2017]; Soto v Alert No. 1 Alarm Sys., 272 AD2d 466 , 468 [2000]; cf. Assevero v Hamilton & Church Props., LLC, 131 AD3d 553 , 558 [2015]; Argueta v Pomona Panorama Estates, Ltd., 39 AD3d 785 , 786 [2007]).

The 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 AD3d 807 , 808 [2012], quoting Ortega v Puccia, 57 AD3d 54 , 61 [2008]; see Russin v Louis N. Picciano & Son, 54 NY2d 311 , 316-317 [1981]; Gonzalez v Perkan Concrete Corp., 110 AD3d 955 , 958-959 [2013]). “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 AD3d at 62 ; see Cody v State of New York, 82 AD3d 925 , 927 [2011]).

Here, the defendants failed to establish, prima facie, that Plaza did not have the authority to exercise supervision and

Accordingly, the Supreme Court should have denied those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against Plaza.

Leventhal, J.P., Hall, Hinds-Radix and Maltese, JJ., concur.