Melendez v Century 21, Inc.
Annotate this CaseDecided on November 16, 2004
Supreme Court, New York County
Harry Melendez and Francisca Melendez, Plaintiffs,
against
Century 21, Inc., Julian Smith, Sharon Smith And SST Industries, Inc., Defendants.
101912/02
Marylin G. Diamond, J.
This is a personal injury action arising out of a construction-related accident which occurred on August 7, 2001 at a building located in Brooklyn, New York. Plaintiff Harry Melendez, an employee of non-party Salinas Rock and Rail, alleges that he was injured in a fall from a ten-foot ladder while installing shelves as part of the conversion of the building from a distribution center warehouse to a retail store. According to the plaintiff, he lost his balance and fell to the ground when the ladder shifted as he stood on the second rung from the top striking a screwdriver with a mallet.
The defendants include the primary tenant of the property (Century 21, Inc.), Century 21's owners (Julian and Sharon Smith) and the general contractor (SST Industries, Inc.). In their complaint, plaintiffs assert causes of action under sections 200, 240(1), 241(6) of the Labor Law, as well as under the principles of common law negligence. In their answer, Century 21 and the Smiths asserted a cross claim against SST for contribution and common law indemnification. Plaintiffs now move for partial summary judgment on the issue of liability under section 240(1) of the Labor Law. Century 21 and the Smiths have cross-moved for summary judgment dismissing plaintiffs' claims under sections 200 and 241(6). SST joins in this request. On their cross-motion, Century 21 and the Smith also seek summary judgment on their cross claim against SST for contribution and common law indemnification.
As to the plaintiffs' motion for partial summary judgment, Labor Law § 240(1) requires that all contractors and owners engaged in the erection, alteration or renovation of a building or other structure "furnish or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." The statute contemplates protecting workers from the special hazards which arise when a work site [*2]either is elevated or is positioned below the level where materials are hoisted or secured. See Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-02 (1993). It is well settled that it is the burden of the injured worker to establish that Labor Law § 240(1) was violated and that the violation was a proximate cause of his injuries. See, e.g., Weininger v. Hagedorn & Co., 91 NY2d 958, 960 (1998); Meade v. Rock-McGraw, Inc., 307 AD2d 156, 159 (1st Dept. 2003). Where, as here, the accident involves a fall from a ladder, it is sufficient for purposes of establishing liability under section 240(1) for a plaintiff to show that adequate safety devices to prevent the ladder from slipping or to protect him from falling were absent. See Montalvo v. J. Petrocelli Construction, Inc., 8 AD3d 173, 175 (1st Dept. 2004). Here, it is undisputed that the ladder was not properly secured, that it slipped and caused plaintiff to lose his balance, and that there were no safety devices available to protect him from falling. It would therefore appear that plaintiffs are entitled to partial summary judgment. See Yu Xiu Deng v. A.J. Contracting Company, Inc., 255 AD2d 202, 203 (1st Dept. 1998); Lopez v. 36-2nd J Corp., 211 AD2d 667, 668 (2nd Dept. 1995).
SST, however, argues that summary judgment should be denied because there is an issue of fact as to whether plaintiff's actions were the sole proximate cause of the accident. In making this argument, SST relies on recent case law which has held that where a worker fails to use an otherwise adequate ladder properly, this misuse may be considered the sole proximate cause of the accident even though safety devices such as a safety belt were not present. See Blake v. Neighborhood Housing Services, 1 NY3d 280, 290-92 (2003); Meade v. Rock-McGraw, Inc., 307 AD2d 156, 159-160 (1st Dept. 2003). In this respect, SST argues that the plaintiff caused the accident because he knew that the ladder would be unsteady but failed to ask anyone to hold the ladder or provide him with a different ladder. Even if true, plaintiff's failure to take these precautionary measures do not constitute misuse of the ladder and cannot, in any event, constitute the sole cause of his accident since there was a statutory violation which served as a proximate cause of his injuries.
The defendants also argue that partial summary judgment should be denied because plaintiff was not engaged in an activity covered under the Labor Law. Specifically, they argue that the shelves which the plaintiff was installing at the time of his accident do not constitute a "structure" within the meaning of Labor Law § 240(1). It is, however, irrelevant whether the shelves are considered a "structure" as that term is employed in section 240(1). The plaintiff was injured while engaged in work which was part of a construction project involving the renovation or alteration of a building. As such, the accident was covered under the statute. In any event, the shelves, which were attached to each other, clearly fall within the definition of "structure" as a "piece of work artificially built up or composed of parts joined together in some definite manner." Lombardi v. Stout, 80 NY2d 290, 295 (1992). See also Sinzieri v. Expositions, Inc., 270 AD2d 332, 333 (2nd Dept. 2000). The court therefore concludes that plaintiffs' motion for partial summary judgment on their Labor Law § 240(1) claim must be granted.
As to the defendants' cross-motion for summary judgment , plaintiffs have not opposed that branch of the motion seeking the dismissal of their section 241(6) claims and these claims are therefore dismissed. With respect to plaintiffs' negligence claims under Labor Law §200 and under the principles of the common law, liability on these grounds requires a showing that the owner or [*3]general contractor of the work site had the authority to control the activity bringing about the injury. See Russin v. Picciano & Son, 54 NY2d 311, 317 (1981). In this respect, there is no evidence that either Century 21 or the Smiths had any control over the plaintiff's work. These claims should therefore be dismissed as against these three defendants. However, as to SST, the motion must be denied. At his deposition, plaintiff testified that SST's owner visited the work site approximately four days before the plaintiff's accident and instructed him on how to perform the work. Plaintiff also testified that he would communicate with SST's owner about the progress of the job at the end of each work day. This testimony is sufficient to raise an issue of fact as to whether SST exercised supervision and control over plaintiff's work.
Finally, Century 21 and the Smiths have cross-moved for summary judgment on their cross claim against SST for contribution and common law indemnification. The courts have generally held that under the principles of common law indemnification, a contractor may be obligated to indemnify a party who has been held vicariously liable for injuries solely by virtue of the provisions of Labor Law § 240(1), upon proof that the contractor was negligent or had the authority to direct, supervise and control the work giving rise to the injury. See Rodriguez v. Metropolitan Life Ins. Co., 234 AD2d 156, 157 (1st Dept. 1996); Terranova v. City of New York, 197 AD2d 402 (1st Dept. 1993). See also Hernandez v. Two East End Avenue Apartment Corp., 271 AD2d 570, 571 (2nd Dept. 2000); Marek v. DePoalo & Son Building Masonry, Inc., 240 AD2d 1007, 1008 (3rd Dept. 1997). But see Correia v. Professional Data Management, Inc., 259 AD2d 60, 65 (1st Dept 1999); Velez v. Tischman Foley Partners, 245 AD2d 155 (1st Dept. 1997). Here, as noted above, there is an issue of fact as to whether SST had the authority to direct, supervise and control the work giving rise to plaintiff's injury. The cross-motion by Century 21 and the Smiths for summary judgment on their cross claim against SST must therefore be denied.
Accordingly, the plaintiffs' motion for partial summary judgment on the issue of liability under section 240(1) of the Labor Law is hereby granted. The cross-motion for summary judgment is granted to the extent that the plaintiffs' claim under Labor Law § 241(6) is dismissed as against all of the defendants and the plaintiffs' negligence claims under Labor Law § 200 and the common law are dismissed as against Century 21 and the Smiths. The cross-motion is otherwise denied.
The parties shall appear before the court in Room 412, 60 Centre Street, New York, New York on December 21, 2004 at 10:00 a.m. to pick a trial date.
ENTER ORDER
Dated: November 16, 2004________________________
Marylin G. Diamond, J.S.C.
[*4]
Check one:[ ] FINAL DISPOSITION[X] NON-FINAL DISPOSITION
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