Bagshaw v. Network Service Management, Inc.
| Decision Date | 11 February 2004 |
| Docket Number | CA 03-01590. |
| Citation | 4 A.D.3d 831,2004 NY Slip Op 00837,772 N.Y.S.2d 161 |
| Parties | DANIEL L. BAGSHAW, Respondent-Appellant, v. NETWORK SERVICE MANAGEMENT, INC., Respondent, and OLD NAVY, INC., et al., Appellants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the cross motion of defendant Network Service Management, Inc. in part, reinstating the Labor Law § 240 (1) claim against it, granting the motion in its entirety, denying that part of the amended cross-motion with respect to the common-law negligence cause of action against defendant Old Navy, Inc. and reinstating that cause of action against it and as modified the order is affirmed without costs.
Plaintiff commenced this action to recover damages for injuries he sustained when he fell through an elevated electric sign during the course of his employment as a repairman for the Allied Sign Company, Inc. (Allied). Plaintiff fell through the sign immediately upon removing the side panel and entering the sign to perform an inspection preparatory to necessary repairs. Defendant Tehan's Catalog Showrooms, Inc. (Tehan's) owned the site, and defendant Old Navy, Inc. (Old Navy) leased a store at the site and owned the sign. Defendant Network Service Management, Inc. (Network) is a national management firm that contracts with local repair shops to service electric signs on behalf of its customers, one of which is Old Navy.
Supreme Court properly granted that part of plaintiff's motion seeking partial summary judgment against Tehan's and Old Navy on the issue of liability under Labor Law § 240 (1). Contrary to the contention of Tehan's and Old Navy, the record conclusively establishes that plaintiff was performing an inspection at the time of the accident necessary and incidental to the repair work that Allied had been hired to perform, and thus plaintiff is entitled to the protection of section 240 (1) (see Caraciolo v 800 Second Ave. Condominium, 294 AD2d 200, 202 [2002]; Short v Durez Div.-Hooker Chems. & Plastic Corp., 280 AD2d 972, 973 [2001]; Leubner v McNeil, 261 AD2d 777 [1999], lv dismissed 93 NY2d 1041 [1999]; Seguin v Massena Aluminum Recovery Co., 229 AD2d 839 [1996]; cf. Fabrizio v City of New York, 306 AD2d 87 [2003]). "[T]he relevant inquiry here is not whether the plaintiff picked up a tool to effect a repair, but whether he was hired to take any part in the repair work" (Campisi v Epos Contr. Corp., 299 AD2d 4, 8 [2002]). Allied was engaged here by Network at Old Navy's request to repair the sign on condition that the cost of the repair not exceed $400. Although Network was aware that the sign needed major repairs and that another repair shop had quoted a price of more than $8,000 to fix it, Network did not disclose that information to Allied. Neither Network's work order nor Network's service order contract with Allied indicates that Allied was to provide a repair estimate only. Indeed, plaintiff was aware only that he was on a service call, and he was injured before he had any opportunity to assess the damage to the sign. Thus, this case is distinguishable from Gibson v Worthington Div. of McGraw-Edison Co. (78 NY2d 1108 [1991]), wherein the injured plaintiff was asked only to supply a repair estimate. It also is distinguishable from Martinez v City of New York (93 NY2d 322 [1999]), wherein the injured plaintiff was hired only to perform an inspection as a precursor to construction work to be performed by others. "[S]ection 240 (1) `is to be construed as liberally as may be for the accomplishment of the purpose for which it was . . . framed'" (id. at 326, quoting Quigley v Thatcher, 207 NY 66, 68 [1912]). We therefore agree with the court that section 240 (1) is applicable to this case.
We disagree with the court, however, that Network has no liability under section 240 (1) as a general contractor, and thus we conclude that the court erred in granting that part of the cross motion of Network seeking summary judgment dismissing the section 240 (1) claim against it. Indeed, we conclude that the court should have granted that part of plaintiff's motion seeking partial summary judgment against Network on the issue of liability under section 240 (1), and we therefore modify the order accordingly.
"[A] general contractor is generally responsible...
To continue reading
Request your trial
-
Doskotch v. Pisocki, 526644
...871 N.Y.S.2d 456 [2009] ; England v. Vacri Constr. Corp., 24 A.D.3d 1122, 1123, 807 N.Y.S.2d 669 [2005] ; Bagshaw v. Network Serv. Mgt., 4 A.D.3d 831, 832–833, 772 N.Y.S.2d 161 [2004] ). Plaintiff testified that he planned to inspect the chimney to see what repairs were needed and to take m......
-
Jweinat v. City of N.Y.
...counsel, Gowans v. Otis Marshall Farms, Inc (85 A.D.3d 1704, 925 N.Y.S.2d 783 [Fourth Dept 2011] ), Bagshaw v. Network Serv. Mgmt. (4 A.D.3d 831, 772 N.Y.S.2d 161 [Fourth Dept 2004] ) and Caraciolo v. 800 Second Ave. Condominium (294 A.D.2d 200, 743 N.Y.S.2d 8 [First Dept 2002] ), wherein t......
-
Gowans v. Otis Marshall Farms Inc.
...Otis, and that such measurements were “necessary and incidental” to the replacement of rotting carrier beams ( Bagshaw v. Network Serv. Mgt., 4 A.D.3d 831, 832, 772 N.Y.S.2d 161; see Mannes v. Kamber Mgt., 284 A.D.2d 310, 726 N.Y.S.2d 440, lv. dismissed 97 N.Y.2d 638, 735 N.Y.S.2d 494, 760 ......
-
Diocerson v. Bailey
...no dispute as to the facts and if the only issue is the legal conclusion to be drawn from the facts. Bagshaw v. Network Serv. Mgmt., Inc.. 4 A.D.3d 831 (Fourth Dept. 2004). Summary judgment may be granted if the opposing party fails to deny any of the moving party's factual allegations, and......