Ochoa v State of Wis. Inv. Bd.

[*1] Ochoa v State of Wis. Inv. Bd. 2010 NY Slip Op 52075(U) [29 Misc 3d 140(A)] Decided on December 1, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 1, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., McKeon, Shulman, JJ
570649/10.

Alberto Ochoa, Plaintiff-Respondent,

against

State of Wisconsin Investment Board, Defendant-Appellant. State of Wisconsin Investment Board, Third-party Plaintiff-Appellant, Astro Waterproofing & Restoration Corp., Third-party Defendant-Respondent.

Defendant/third-party plaintiff, State of Wisconsin Investment Board ("Wisconsin"), as limited by its briefs, appeals from those portions of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), dated September 21, 2009, which denied its motion for summary judgment (1) dismissing plaintiff's Labor Law § 200 and common law negligence claims, and (2) on its contractual indemnification claim against third-party defendant Astro Waterproofing & Restoration Corp. ("Astro").

Per Curiam.

Order (Raul Cruz, J.), dated September 21, 2009, insofar as appealed from, reversed, with one bill of $10 costs, Wisconsin's motion for summary judgment granted, plaintiff's Labor Law § 200 and common law negligence claims dismissed, and Wisconsin awarded summary judgment on its contractual indemnification claim against Astro. The Clerk is directed to enter judgment accordingly.

Civil Court improperly denied Wisconsin's motion for summary judgment dismissing plaintiff's common law negligence and Labor Law § 200 claims. To establish liability against an owner, such as Wisconsin, pursuant to Labor Law § 200 (or under common law negligence principles) where the injury occurred as a result of the manner in which the work was performed, [*2]plaintiff must establish that the owner exercised supervisory control over the work (see Lombardi v Stout, 80 NY2d 290 [1992]; see also Mitchell v New York Univ., 12 AD3d 200 [2004]). Here, plaintiff was engaged in removing concrete with a drill when he was allegedly struck in the eye by a piece of metal. The record establishes, as a matter of law, that the work was supervised and controlled exclusively by plaintiff's employer, Astro, not by Wisconsin. Although Wisconsin personnel were at the site at various times to monitor the work to ensure it was being performed in accordance with contract specifications and to report safety violations, such facts are insufficient to support a finding of supervisory control (see Perri v Gilbert Johnson Enterprises, Ltd., 14 AD3d 681 [2005]; see also Hughes v Tishman Const. Corp., 40 AD3d 305 [2007]). Since plaintiff failed to adduce any evidence that Wisconsin exercised supervisory control over the injury-producing activity, summary judgment was warranted in Wisconsin's favor dismissing the Labor Law § 200 and common law negligence claims.

With respect to Wisconsin's claim for contractual indemnification against Astro,[FN1] the indemnity provision relied upon by Wisconsin is not void under General Obligations Law § 5-322.1 (see Brooks v Judlau Contr., Inc., 11 NY3d 204 [2008]; see also Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786 [1997]). In any event, even assuming that the provision did violate that statute, Wisconsin may nevertheless enforce the provision, since the evidence established, as a matter of law, that plaintiff's injuries were not attributable to negligence on Wisconsin's part and that its liability was vicarious and purely statutory (see Rhodes-Evans v 111 Chelsea LLC, 44 AD3d 430 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: December 01, 2010 Footnotes

Footnote 1:Plaintiff's claim against Wisconsin under Labor Law § 241(6) remains extant.