Keenan v Simon Prop. Group

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Keenan v Simon Prop. Group 2012 NY Slip Op 32612(U) October 10, 2012 Sup Ct, New York County Docket Number: 114134/2008 Judge: Richard F. Braun Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNEDON 1011612012 [* 1] SUPREMf COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART PRESENT: 2?~ INDEX NO. index Number : 11413412008 KEENAN, PETER MOTION DATE PAPERS NUMBERED - Affidavits - Exhibits Notice of Motion/ -use ... Answering Affidavits - Exhibits I LJ B5 Replying Affidavits Ci"oss-Motion: 0 Yes &No NEW VQWK COUNTY CLERK'S OFFICE /.,' Check one: ;r FINAL DISPOSITION Check if appropriate: 3 r] SUBMIT ORX)ER/JUDG. J. S. C. E G O N - F I N A L DISPOSITION DO NOT POST E REFERENCE n SETTLE ORDER /JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YOIIK: IAS PART 23 Tndex No. 114 I34/08 PETER KEENAN and JOAN KEENAN, OPINION Plaintiffs, -against- THE ART OF SHAVING-NY, LLC, ALERT GLASS & AKCHITECTUKAL METALS CORP., and THE RETAIL PROPERTY TRUST ILED Defendants. , - -X NEW YORK COUNTY CLERK S OFFICE RICHARD BRAUN, F. J.: J his is a personal injury action arising out of a construction accident allcging violations of Labor Law $5 200,240 ( I ) and 241 (6), and common law negligence. Dcfendants Simon Property Group, Inc., The Art of Shaving, Inc., The Art of Shaving-NY, LLC (Art of Shaving), The Retail Property Trust (Retail Property), and Simon DeBartolo Group, Inc. moved for summary judgment dismissing the complaint against them, and for summary judgment against co-defendant Alert Glass & Architectural Metals Corp. (Albert Glass) on the movants common law indemnity claim. Plaintif fs movc scparately for partial summary judgment on the issue of liability pursuant to Labor Law $ 240 (l), and defendant Alert Glass moves separately for summaryjudgment dismissing the complaint and all cross claims against that defendant. Defendants contend that plaintiff Peter Keenaii (plaintiff) was the sole proxiinatc cause of his accident by using an A-frame ladder in a closed position. Plaintiff contends that he was not provided with a proper safety device. I By Stipulation, dalcd May 3 I , 201 2, tlic claims against defendants Simon Property Group, Tnc., The Art of Shaving, Inc., and Simon DeBartolo Group, Inc. were discontinued, and ihe branches of the motion on behalf of thosc dcftndants were withdrawn. [* 3] A party moving for summary judgment must demonstrate his, her, or its entitleinelit thereto as a matter of law. pursuant to CPLK 3212 (bj (Smalls vA./1Indus., h e . , 10 NY3d 733,735 [2008]; Sznmitomo Mifsui Bunking Torp. v Credit S'~ii.sse, AD3d 561, 563 11Et Dept 201 11). The inability 89 to make such a demonstration must lead to denial of the motion, no matter how inadequate the opposition papers may bc (Santiago v Filstein, 35 AD3d 184, 186 [Is1 Dept 20061). l'o defeat summary judgment, the party opposing the motion must show that there is a material question(s) of fact that requircs a trial (Ferluckaj v Goldmun Suchs B Ch., 12 NY3d 3 16, 320 120091;Zuckerman v City OfNew York, 49 NY2d 557, 562 119801; CitiFinancial C'o. (DE) v McKinney, 27 AD3d 224, 226 [ 1" Dcpt 20061j. The party moving fbr summary judgment has the initial burden on the motion (Ferluckaj v Goldrnuri Sucdzs & Co., 12 NY3d 3 16,320 [2009]; Uddin City ofNew York, 88 AD3d 1.1 489, 490 [ 1'I Dept 20 1 I I; ,Jurosluwicz v Prestige Caterers, 292 AD2d 232, 233 [ 1st Dept 2002l). An issue of fact exists as to whether plaintiff was the sole proximate cause of the accident (see Blake v Neighborhood I h ~ sServ. of New York City, Inc., 1 NY3d 280,289 n 8 [2003]; Meude . v Rock-McGraw, Inc., 307 AD2d 156, 159-160 [l" Dept 20031). Although there is evidence that plaintiff misuscd the A-frame ladder, plaintiff testifies that a cawc of the accident was his foot getting stuck on the points of a step of thc ladder, which is suiXcient to raise an issue of fact as to whether a defect in the ladder was a proximate cause of the accident. Defendants simply presented no cvidence that the ladder was not defectivc. Defendants Art of' Shaving and lictail Property are not entitled to summary judgment on their cross claim lor coinmon Jaw indemnification against dcfendant Alert Glass. Common law indemnification is available to a solely vicariousJy liable party from an actually negligent pai-ty (see McCmthy 17 Turner C'onst., Inc., 17 NY3d 369, 374, 378 [201 11; C'orreia v ProfessionalData Mg/., 2 . .. [* 4] 259 AD2cl60, 65 [ 1 Dept 19991). While dcfendants Art of Shaving and Retail Property may have had no rolc in supervising and controlling plaintiff-s work so that any liability on their part would bc entirely vicarious, dcfcndants Art o l Shaving and Retail Property h a w failed to collie forward with evidence that defendant Alert Glass was actually negligcnt. Even if it was shown that defendants Art of Shaving and Retail Property had the authority to supervise the work and implement safety procedures, that would be insufficient because actual supervision of+ means and methods the of the work is requircd (see McCurlhy v Turner Const., h c . , 17 NY3d at 378 [2011]; A r t e a p v 231/249 W 39 St. C orp., 45 AD3d 320, 321 [ I Dept 20071). Defcndaiit Alert Glass is entitlcd to summaryjudgment dismissing the complaint against that defendant as dcfciidaiit Alert Glass was riot an owner, general contractor or a statutory agent that had supervisory authority and control over the work being performed, so there is no basis for liability against that defendant under Labor Law 5 8 240(1) and 241(6) (see WulZ.s v Turner Constr. Co., 4 NY3d 861,864 [2005]; Blake v Neighborhood I3ous. Serv. o f N ~ w York Cily, Inc., 1 NY3d at 292293; R u s h v Loztis N. Piccinno B Son, 54 NY2d 3 1 1, 3 I 7-3 18 [ 1981J; Mocarsku v 200 Mudison 4.s.s.o~. 6 2 AD2d 163 [ 1 Dcpt 19991). Further, defendant Alert Glass did not direct, supervise or ,2 control plaintiffs work, so that there is no basis lor liability under Labor 1,aw § 200 or common law iicgligence (.wCl Sullivan v. IDICons/. C o., Inc., 7 NY3d 805,806 [2006]; C. ome.r v New YorkSinte Elcc. irnd Gus C orp , 82 NY2d 876, 877 [ 19931; Xmcin v Louis N Picciano & Son354 NY2d 3 11, 317 [198ll; Hughes v Tishmun Const. Cl orp.,40 AD3d 305, 306 [ I Dept 20071; cfi Vuneerv YY3 Inle/*vulc? I h w . Ilev. F m d C h i p , 5 AD3d 161, 163 [ 1 Dept 2004J [ Wliile delendant might Avc. inspect the work to insure that it was done according to specillcations, general supervisory authority at thc work site lor the purpose o l oversccing the progrcss of the work and inspecting the work 3 . - . . . .. - . . - [* 5] product is insufficient to impose liability (under Labor Law 200). ]). Moreover, in the absencc of any evidence that defendant Alert Glass supervised or controlled plaintiff-s work, the cross claims for conmion law indemnification and contribution against defcndant Alert Glass should bc dismissed (see Artengn v 23 U249 W 39 ,S treet Gorp,, 45 AD3d at 321). Accordingly, by separate decisions and orders of this date, plaintiffs, and dcfcndants Art o l Shaving and Retail Propcrty were denied summary judgment. Defendant Alert Glass was grantcd sumniary judgment dismissing the complaint, and the coniinon law indemnification and contribution cross clainis against that defendant. Dated: New York, New York October 10, 2012 I RICHARD P. BRAUN, J.S.C. FILED NEW YORK COUNTY CLERKS OFFICE 4

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