DocketNumber: Appeal No. 2
Filed Date: 7/5/2013
Status: Precedential
Modified Date: 11/1/2024
It is hereby ordered that the order so appealed from is unanimously modified on the law by granting those parts of the motion of defendant-third-party plaintiff, Sicoli & Massaro, Inc., and defendant Lockport City School District Board of Education for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action, and granting that part of the motion for summary judgment on the third-party complaint, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he fell through a roof over the swimming pool at Lockport High School that was being renovated (project). Defendant Lockport City School District Board of Education (Board) hired defendant-third-party plaintiff, Sicoli & Massaro, Inc. (Sicoli), as the general contractor on the project. Sicoli entered into a subcontract with third-party-defendant-fourth-party plaintiff, Guard Contracting Corp., also known as Guard Construction & Contracting, Corp. (Guard), to remove the existing roof. Guard, in turn, subcontracted that work to fourth-party defendant, Innovative Insulated Systems, Inc., also known as Innovative Insulation, Inc. (Innovative). While performing work on the project, plaintiff, an Innovative employee, fell through the deteriorated gypsum roof decking onto a scaffold that had been erected inside the building to prevent debris from falling into the pool. At the time of his fall, plaintiff had unhooked his safety harness from the steel lifeline that had been placed on the roof. After plaintiff commenced this action for various Labor Law violations and common-law negligence, Sicoli commenced a third-party action against Guard seeking contractual indemnification. Guard then commenced a fourth-party action against Innovative for, inter alia, contractual and common-law indemnification.
As relevant to appeal No. 1, Guard moved for partial summary judgment on its contractual indemnification cause of action. Supreme Court denied Guard’s motion, and Guard appeals.
Addressing first the issues raised in appeal No. 2, we conclude that, contrary to plaintiff’s contention, the court properly granted that part of defendants’ motion seeking summary judgment dismissing the Labor Law § 240 (3) cause of action. That section, which provides that “[a] 11 scaffolding shall be so constructed as to bear four times the maximum weight required to be dependent therefrom or placed thereon when in use[,]” does not apply in this case because the roof decking through which plaintiff fell was not a scaffold (cf. Caruana v Lexington Vil. Condominiums at Bay Shore, 23 AD3d 509, 510 [2005]).
We further conclude that the court properly denied those parts of defendants’ motion and the cross motions of plaintiff and Guard with respect to the Labor Law § 240 (1) cause of action. It is well settled that, “[i]n order to prevail on a cause of action pursuant to Labor Law § 240 (1), a plaintiff must establish that an owner or contractor failed to provide appropriate safety devices at an elevated work site and that such violation
We reject defendants’ contention that the court erred in denying that part of their motion with respect to the Labor Law § 241 (6) cause of action insofar as it is based upon a violation of 12 NYCRR 23-1.16. We conclude that 12 NYCRR 23-1.16 (b) applies to the facts of this case, even though plaintiff was not actually attached to the lifeline at the time of his fall, inasmuch as plaintiff testified at his deposition that the safety devices provided to him were inadequate for him to complete his work because they did not afford him access to the entire roof (see Latchuk v Port Auth. of N.Y. & N.J., 71 AD3d 560, 560 [2010]).
We conclude, however, that the court erred in denying that part of defendants’ motion for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action, which were based on defendants’ alleged supervision and
We further conclude that the court erred in denying that part of defendants’ motion for summary judgment on the third-party complaint, in which Sicoli sought contractual indemnification from Guard. We therefore further modify the order accordingly. Although a party is not entitled to summary judgment on a contractual indemnification claim where issues of fact remain whether the indemnitee was actively negligent (see Jamindar v Uniondale Union Free School Dist., 90 AD3d 612, 616 [2011]; Stranz v New York State Energy Research & Dev. Auth. [NYSERDA], 87 AD3d 1279, 1283 [2011]), as addressed in our analysis with respect to plaintiff’s Labor Law § 200 and common-law negligence causes of action, Sicoli established that it was not negligent as a matter of law (see Nicholas v EPO-Harvey Apts., Ltd. Partnership, 31 AD3d 1174, 1175-1176 [2006]; Torres v Morse Diesel Intl., Inc., 14 AD3d 401, 403 [2005]). Additionally, the indemnification provision in the subcontract between Sicoli and Guard evinces a clear intent that Guard indemnify Sicoli for all damages arising out of the work subcontracted to Guard, regardless of who ultimately performed that work (see generally Lipari v AT Spring, LLC, 92 AD3d 502, 504-505 [2012]).
Finally, we conclude with respect to appeal No. 1 that the court properly denied Guard’s motion for partial summary judgment on its contractual indemnification cause of action against Innovative. The indemnification provision in the subcontract between Guard and Innovative requires indemnification only for damages that were caused by the negligent acts or omissions of Innovative or its subcontractors. Inasmuch as there are questions of fact whether Innovative was negligent, Guard’s motion was properly denied (see Guarnieri v Essex Homes of WNY, 24 AD3d 1266, 1266-1267 [2005]; cf. Sheridan v Albion Cent. School Dist., 41 AD3d 1277, 1279 [2007]). Present — Centra, J.P., Fahey, Garni, Whalen and Martoche, JJ.