Gunderman v Sure Connect Cable Installation, Inc.

Gunderman v Sure Connect Cable Installation, Inc. 2012 NY Slip Op 08393 Decided on December 6, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 6, 2012
514598

[*1]RICHARD J. GUNDERMAN et al.,Appellants- Respondents,

v

SURE CONNECT CABLE INSTALLATION, INC., et al., Respondents- Appellants, et al., Defendant.

Calendar Date: October 11, 2012
Before: Mercure, J.P., Lahtinen, Malone Jr., Stein and Egan Jr., JJ.


Leonard & Cummings, LLP, Binghamton (Hugh B.
Leonard of counsel), for Richard J. Gunderman and another,
appellants-respondents.
Smith, Sovik, Kendrick & Sugnet, PC, Syracuse
(Michelle M. Davoli of counsel), for Sure Connect Cable
Installation, Inc., respondent-appellant.
Bond, Schoeneck & King, PLLC, Syracuse (Jonathan
B. Fellows of counsel), for Time Warner Entertainment-
Advance/Newhouse Partnership, respondent-appellant.

MEMORANDUM AND ORDER


Egan Jr., J.

(1) Cross appeals from an order of the Supreme Court (Reynolds Fitzgerald, J.), entered October 4, 2011 in Broome County, which, among other things, partially granted a cross motion by defendant Sure Connect Cable Installation, Inc. for summary judgment and dismissed the Labor Law §§ 240 (1) and 241 (6) claims against it, and (2) appeals from an order of said court, entered January 25, 2012 in Broome County, which, upon reargument, partially granted plaintiffs' motion for, among other things, partial summary judgment.

In May 2005, defendant Time Warner Entertainment—
Advance/Newhouse Partnership contracted with defendant Sure Connect Cable Installation, Inc. to perform certain cable installations within Time Warner's franchise area, and Sure Connect, in turn, contracted with various technicians, including plaintiff Richard J. Gunderman, to perform [*2]the actual installation work. In January 2008, Gunderman was dispatched to a residence in Saratoga County to upgrade a customer's service — a task that included, among other things, replacing the "drop line" connecting the residence to the "hard line," the latter of which constituted the main cable running between the nearby utility poles (allegedly owned by defendant Niagara Mohawk Power Corporation). The hard line was supported by a steel cable known as a strand, and the drop line was connected to the strand using clamps and a device known as a messenger. Although Gunderman has no memory of the accident, photographs and other record evidence suggest that Gunderman placed a ladder over the strand and ascended the ladder, at which point the drop line either broke or was cut by Gunderman and "whipped back," causing Gunderman to fall to the pavement below and sustain serious head injuries.[FN1]

Gunderman and his wife, derivatively, thereafter commenced this action against Sure Connect, Time Warner and Niagara Mohawk alleging common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6). Defendants answered and, insofar as is relevant here, Time Warner cross-claimed against Sure Connect for contractual indemnification, and Sure Connect commenced what it denominated as a third-party action against Gunderman seeking contractual and common-law indemnification [FN2]. Following discovery, numerous motions and cross motions ensued; plaintiffs moved for partial summary judgment with respect to their Labor Law § 240 (1) claim, Time Warner moved for summary judgment as to its cross claims against Sure Connect, and Sure Connect cross-moved for summary judgment dismissing both Time Warner's cross claims and plaintiffs' complaint.

By order entered October 4, 2011, Supreme Court partially granted Sure Connect's cross motion and dismissed plaintiffs' Labor Law §§ 240 (1) and 241 (6) claims and denied the balance of the requested relief, prompting cross appeals by plaintiffs, Time Warner and Sure Connect. Plaintiffs thereafter successfully moved to reargue and, by order entered January 25, 2012, Supreme Court granted plaintiffs partial summary judgment with respect to their Labor Law § 240 (1) claim. Time Warner and Sure Connect appeal from that order as well.

Initially, we reject Sure Connect's contention that Supreme Court abused its discretion in granting plaintiffs' motion to reargue. The crux of plaintiffs' argument in this regard was that Supreme Court misapplied this Court's then recent decision in Randall v Time Warner Cable, Inc. (81 AD3d 1149 [2011]) and, upon further deliberation, Supreme Court agreed. Contrary to Sure Connect's assertion, there is nothing in the record to suggest that Supreme Court considered new facts in deciding the motion; indeed, Supreme Court expressly noted that it was precluded from doing so. Under these circumstances, we discern no abuse of discretion in Supreme Court's decision to grant reargument.

Turning to the merits, the case law makes clear that a utility pole "with [its] attached [*3]hardware, cable and support systems constitutes a structure within the meaning of [Labor Law § 240 (1)]" (Lewis-Moors v Contel of N.Y., 78 NY2d 942, 943 [1991]; see Smith v Shell Oil Co., 85 NY2d 1000, 1001 [1995]; McCoy v Kirsch, 99 AD3d 13, 16 [2012]; Ackley v New York State Elec. & Gas Corp., 8 AD3d 941, 942 [2004]; Widrig v Alltel N.Y., 281 AD2d 967, 968 [2001]; Fuller v Niagara Mohawk Power Corp., 213 AD2d 986, 986 [1995], lv denied 86 NY2d 708 [1995]). Hence, our inquiry distills to whether the overall work that Gunderman was performing involved "'making a significant physical change to the configuration or composition of [a] building or structure'" (Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998], quoting Joblon v Solow, 91 NY2d 457, 465 [1998]), thereby constituting an alteration (see Labor Law § 240 [1]; Belding v Verizon N.Y., Inc., 65 AD3d 414, 415 [2009], affd 14 NY3d 751 [2010]) or, alternatively, whether he was engaged in a "simple, routine activity" (Weininger v Hagedorn & Co., 91 NY2d at 960; see Smith v Pergament Enters. of S.I., 271 AD2d 870, 871 [2000]).

Here, the record indeed reflects that, at the time he was injured, Gunderman was in the process of upgrading the service provided to a residential customer — a task that entailed, among other things, replacing the drop line with a new cable capable of transmitting more data, performing certain indoor wire work and configuring the customer's computer. The record does not, however, contain any meaningful description of the nature or extent of the actual work that Gunderman was scheduled to perform. Gunderman, as noted previously, has no memory of the tasks he performed that day, the technician who completed the upgrade following Gunderman's fall apparently was not deposed and, although a Time Warner supervisor decoded the work order contained in the record on appeal, he did not offer any details regarding the actual manner in which the service upgrade was to be accomplished. Absent a more detailed description of the tasks required to complete the requested upgrade, we are unable to determine — on this record — whether the work undertaken by Gunderman on the day of his accident constituted an alteration within the meaning of Labor Law § 240 (1) (compare Weininger v Hagedorn & Co., 91 NY2d at 959-960, and Schick v 200 Blydenburgh, LLC, 88 AD3d 684, 685-686 [2011], lv dismissed 19 NY3d 876 [2012], and Randall v Time Warner Cable, Inc., 81 AD3d at 1151, and Smith v Pergament Enters. of S.I., 271 AD2d at 871, and Bedassee v 3500 Snyder Ave. Owners Corp., 266 AD2d 250, 250-251 [1999], with Lavigne v Glens Falls Cement Co., 92 AD3d 1182, 1183 [2012], lv denied 19 NY3d 813 [2012], and Rhodes-Evans v 111 Chelsea LLC, 44 AD3d 430, 432-433 [2007], and Cooper v Time Warner Entertainment-Advance/Newhouse Partnership, 16 AD3d 1037, 1038 [2005]). Accordingly, notwithstanding the liberal construction to be afforded to Labor Law § 240 (1) in order to accomplish its remedial purpose (see Lombardi v Stout, 80 NY2d 290, 296 [1992]), the award of partial summary judgment to plaintiffs with respect to their Labor Law § 240 (1) claim was premature.

With respect to the various indemnification claims, we agree that Supreme Court erred in denying Time Warner summary judgment on its cross claim for contractual indemnification against Sure Connect. The underlying contract between Time Warner and Sure Connect provides, insofar as is relevant here, that Sure Connect "shall be responsible for its own acts and the acts of its . . . subcontractors during the performance of the [s]ervices" outlined therein and, further, that it "shall defend, indemnity [sic], and hold [Time Warner] harmless with respect to . . . any liabilities, claims, demands, damages, actions, suits[,] costs or fees arising out of or resulting from its negligent acts or omissions or those of workers furnished by it." To impose liability upon Time Warner, the record must demonstrate that Time Warner was "directly, rather than vicariously, negligent, i.e., it must appear that [Time Warner] exercised supervisory control over [Gunderman's] work and had actual or constructive knowledge of the unsafe manner in which the work was being performed" (Turner v Sano-Rubin Constr. Co., 6 AD3d 910, 911 [*4][2004]).

In this regard, although the record indeed reflects that Sure Connect and its subcontractors were subject to some limited oversight from Time Warner, "the retention of general supervisory control . . . is not sufficient to establish the control necessary to impose liability under the common law or the Labor Law" (id. at 912; see Biance v Columbia Washington Ventures, LLC, 12 AD3d 926, 927 [2004]). As the record before us is devoid of proof that Time Warner personnel "exerted any actual control or supervision over [Gunderman] or the manner in which [his] work was performed" (Fassett v Wegmans Food Mkts., Inc., 66 AD3d 1274, 1276 [2009]), Time Warner cannot be deemed to be directly negligent here (see Turner v Sano-Rubin Constr. Co., 6 AD3d at 911). Accordingly, Time Warner is entitled to contractual indemnification from Sure Connect (see id.).

We also agree that Sure Connect's first counterclaim seeking contractual and/or common-law indemnification from Gunderman must be dismissed. Even assuming that the agreement contained in the record on appeal represents the actual subcontractor agreement in effect between Sure Connect and Gunderman during the relevant time period, the hold harmless provision contained therein does not — to our reading — constitute an express waiver by Gunderman of his Labor Law § 240 (1) claim. Further, the liability imposed by Labor Law § 240 (1) is absolute and nondelegable; hence, Sure Connect "cannot avoid or shift liability, wholly or in part, by alleging that [Gunderman] was at fault" (Horning v Gore, 87 AD2d 34, 36 [1982], lv denied 57 NY2d 604 [1982]). The parties' remaining contentions, to the extent that they are properly before us, have been examined and found to be lacking in merit.

Mercure, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur.

ORDERED that the order entered October 4, 2011 is modified, on the law, without costs, by reversing so much thereof as (1) granted that part of the cross motion by defendant Sure Connect Cable Installation, Inc. dismissing plaintiffs' Labor Law § 240 (1) claim, (2) denied plaintiffs' motion for summary judgment dismissing the indemnification claim asserted against plaintiff Richard J. Gunderman by defendant Sure Connect Cable Installation, Inc., and (3) denied the motion of defendant Time Warner Entertainment-Advance/Newhouse Partnership for summary judgment on its cross claim for contractual indemnification against defendant Sure Connect Cable Installation, Inc.; said cross motion denied to that extent and said motions granted to that extent; and, as so modified, affirmed.

ORDERED that the order entered January 25, 2012 is reversed, on the law, without costs, and plaintiffs' motion for partial summary judgment on their Labor Law § 240 (1) claim is denied. Footnotes

Footnote 1:At the time of the incident, Gunderman's safety harness and hard hat were in the back of his truck.

Footnote 2:Although Sure Connect's third-party claims against Gunderman are actually counterclaims against an existing party, we will disregard this procedural irregularity and address the merits (see CPLR 2001, 3026; Bollinger v Borden, 30 AD2d 607, 607 [1968]).