Rubanovich v City of New York

[*1] Rubanovich v City of New York 2005 NY Slip Op 51574(U) [9 Misc 3d 130(A)] Decided on October 3, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 3, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McCOOE, J.P., Gangel-Jacob, Schoenfeld, JJ.


04-298-299Mikhail Rubanovich and Tatyana Rubanovich, Plaintiffs-Respondents, NY County Clerk's # 570459/04

against

City of New York and Hazen & Sawyer, Defendants-Appellants.

Defendant Hazen & Sawyer (H&S) appeals from two orders of the Civil Court, New York County, entered respectively on January 30, 2004 and June 25, 2004 (Donna G. Recant, J.) which, inter alia, granted plaintiffs' cross motion for partial summary judgment on the issue of liability under Labor Law § 240(1) and granted the municipal defendant's cross motion for summary judgment on its cross claim against H&S for contractual and common-law indemnification. The municipal defendant appeals from the aforesaid order of June 25, 2004, to the extent it purportedly granted plaintiffs' cross motion for summary judgment against them on the Labor Law § 240(1) claim.

PER CURIAM:

Order entered June 25, 2004 (Donna G. Recant, J.) modified to deny plaintiffs' cross motion for partial summary judgment as against defendant H&S on their Labor Law § 240(1) cause of action and to deny the cross motion of defendant City of New York for summary judgment on its cross claim for indemnification; as modified, order affirmed, with $10 costs. Appeal by defendant H&S from an order entered January 30, 2004 (Donna G. Recant, J.) dismissed, without costs, as subsumed in the appeal from the order of June 25, 2004. Appeal by defendant City of New York from the order of June 25, 2004 deemed to be from the order entered January 30, 2004 insofar as it granted plaintiffs' motion for summary judgment on its Labor Law § 240(1) claim, and, so considered, said order affirmed, with $10 costs.

The first-named plaintiff, an electrician employed by nonparty prime contractor Kolsch Electric on a renovation project at a waste water pollution plant, was injured on City-owned premises when a ladder and scaffold that he was using toppled, causing him to fall. Plaintiff had been assigned to repair a fire alarm box situated about 10 feet above his portable scaffold. Not having been provided with a mechanical bucket, he felt he had "no other choice" than to place a six-foot ladder atop the scaffold. After he climbed the ladder, "everything started to move," the ladder fell and the scaffolding collapsed. Plaintiffs commenced this action against the City as premises owner, and against H&S as construction manager.

Plaintiffs' motion for summary judgment on the Labor Law § 240(1) claim was properly granted against the municipal defendant. There is no genuine dispute that while engaged in construction at an elevated work position, plaintiff fell from a scaffold provided by his employer, and was injured as a result. Thus, the provisions of § 240(1) apply regardless of the injured [*2]plaintiff's negligence in his use of the scaffold (Hagins v State of New York, 81 NY2d 921 [1993]; Bland v Manocherian, 66 NY2d 452 [1985]). The fact that the scaffold collapsed, and thus did not protect the worker from falling from a substantial height, establishes that the owner failed to take the necessary steps to comply with its nondelegable obligation under § 240(1) to furnish necessary equipment "so constructed, placed and operated as to give proper protection" to the worker. Since the core objective of § 240(1) was defeated, the owner is absolutely liable for this plaintiff's injuries (Garcia v 1122 E. 180th St. Corp., 250 AD2d 550 [1998]). The statute does not permit a finding, on this record, that the worker's actions were the sole proximate cause of his injuries (see Landgraff v 1579 Bronx Riv. Ave., 18 AD3d 385 [2005]; cf. Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]).

Plaintiffs were not entitled to summary judgment on liability against H&S, inasmuch as there exist several unresolved triable issues regarding the construction manager's role in the injury-producing work. Recognizing that the terms "general contractor" and "construction manager" are not synonymous (see Balthazar v Full Circle Constr. Corp., 268 AD2d 96 [2000]), the latter will be deemed the owner's statutory agent for purposes of liability under Labor Law § 240(1) only where it has a contractual duty to oversee and control activities at the work site, and the authority to stop any unsafe work practices (Walls v Turner Constr. Co., 4 NY3d 861 [2005]). In this regard, there is conflicting evidence as to the "contractual or other actual authority [of H&S] to control or supervise the activity bringing about plaintiff's injury" (cf. Filchuk v Lehrer McGovern Bovis Constr., 232 AD2d 329, 330 [1996]; see also Hutchinson v City of New York, 18 AD3d 370 [2005]; Ortega v Catamount Constr. Corp., 264 AD2d 323 [1999]), thus precluding summary disposition.

Since the contractual provision for indemnification requires a finding of negligence on the part of the construction manager, and triable issues exist with regard to H&S's alleged negligence, summary judgment on this point is unwarranted (see Fraiola v St. Joseph's Seminary of City of N.Y., 1 AD3d 280 [2003]). As to common-law indemnification, the claimant, in addition to proving its own freedom from negligence, must also prove some negligence on the part of the alleged indemnitor that contributed to the cause of the accident (see Correia v Professional Data Mgt., 259 AD2d 60, 65 [1999]). The record fails to establish that element on H&S's part at this juncture (see Priestly v Montefiore Med. Ctr./Einstein Med. Ctr., 10 AD3d 493 [2004]; see also Perri v
Gilbert Johnson Enters., 14 AD3d 681, 684-685 [2005]).

This constitutes the decision and order of the Court.
[*3]
Decision Date: October 03, 2005