Siegel v RRG Fort Greene, Inc.

Siegel v RRG Fort Greene, Inc. 2009 NY Slip Op 09716 [68 AD3d 675] December 29, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Peter Siegel, Respondent,
v
RRG Fort Greene, Inc., et al., Respondents-Appellants, and JLS Industries, Inc., et al., Respondents. JLS Industries, Inc., Third-Party Plaintiff-Respondent, v H&L Electric, Inc., Third-Party Defendant-Appellant-Respondent.

—[*1] Camacho Mauro & Mulholland, LLP, New York (Kathleen M. Mulholland of counsel), for appellant-respondent.

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Debra A. Adler of counsel), for respondents-appellants.

The Feld Law Firm P.C., New York (John G. Korman of counsel), for Peter Siegel, respondent.

Garbarini & Scher, P.C., New York (Thomas M. Cooper of counsel), for JLS Industries, respondents.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 23, 2009, which granted plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240 (1), and granted the cross motions by defendants RRG Fort Greene, Inc., Atlantic Center Fort Green, Inc., both of the foregoing individually and doing business as Atlantic Center Fort Greene Associates, L.P. (collectively, Atlantic Center), and defendant/third-party plaintiff JLS Industries, Inc. and J.L.S. Industries, Inc., both of the foregoing individually and doing business as JLS Industries, Inc. (collectively, JLS), for summary judgment on their contractual indemnification claims against third-party defendant H&L Electric, Inc., unanimously modified, on the law, to deny JLS's cross motion and, to the extent it was denied, to grant Atlantic Center's cross motion for summary judgment on its cross claim for contractual indemnification as against JLS, and [*2]otherwise affirmed, without costs.

Plaintiff made a prima facie showing of liability under section 240 (1) by his testimony that the ladder tipped, causing him and the ladder to fall (see Panek v County of Albany, 99 NY2d 452, 458 [2003]). In opposition, defendants and H&L failed to raise an issue of fact whether plaintiff's negligence was the sole proximate cause of the accident. Contrary to H&L's contention, plaintiff was not required to show that the ladder was somehow defective (see McCarthy v Turner Constr., Inc., 52 AD3d 333, 333-334 [2008]).

As there is no evidence that Atlantic Center, the owner of the mall where plaintiff's accident occurred, created or had notice of the alleged defective condition on the floor, Atlantic Center is entitled to summary judgment on its cross claim for contractual indemnification against H&L. However, an issue of fact exists whether JLS, the general contractor, created the alleged defective condition by failing to properly cover the expansion joint on the floor. Accordingly, JLS is not entitled to summary judgment on its third-party action against H&L (see Callan v Structure Tone, Inc., 52 AD3d 334, 335-336 [2008]). JLS failed to preserve its contention that the accident report is inadmissible, and we decline to review it. Contrary to JLS's contention, the photographs depicting the hole on the floor, together with plaintiff's testimony that the photographs accurately depict the floor after his accident, raised issues of fact whether a defective condition existed on the floor and whether that condition proximately caused plaintiff's accident.

To the extent the motion court denied Atlantic Center's cross motion for summary judgment on its claim for contractual indemnification as against JLS, the motion should have been granted. JLS does not dispute that Atlantic Center is entitled to indemnification pursuant to the terms of the parties' contract. Concur—Andrias, J.P., Friedman, Acosta, DeGrasse and RomÁn, JJ.