Bermejo v.

• Decision Date: 02 July 2014
• Citation: 2014 N.Y. Slip Op. 04887,119 A.D.3d 500,989 N.Y.S.2d 490
• Court: New York Supreme Court — Appellate Division
• Parties: Manuel BERMEJO, plaintiff-respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., defendants, Ibex Construction, LLC, defendant third-party plaintiff-appellant; Marble Techniques, Inc., third-party defendant-respondent. (Appeal No. 1) Manuel Bermejo, plaintiff-respondent, v. New York City Health and Hospitals Corporation, et al., defendants, Amsterdam & 76th Associates, LLC, defendant-appellant, Ibex Construction, LLC, defendant third-party plaintiff-respondent; Marble Techniques, Inc., third-party defendant-respondent. (Appeal No. 2).

119 A.D.3d 500

989 N.Y.S.2d 490

2014 N.Y. Slip Op. 04887

Manuel BERMEJO, plaintiff-respondent,

v.NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., defendants,

Ibex Construction, LLC, defendant third-party plaintiff-appellant;

Marble Techniques, Inc., third-party defendant-respondent. (Appeal No. 1)

Manuel Bermejo, plaintiff-respondent,

v.New York City Health and Hospitals Corporation, et al., defendants,Amsterdam & 76th Associates, LLC, defendant-appellant,

Ibex Construction, LLC, defendant third-party plaintiff-respondent;

Marble Techniques, Inc., third-party defendant-respondent. (Appeal No. 2).

Supreme Court, Appellate Division, Second Department, New York.

July 2, 2014.

Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for Ibex Construction, LLC, defendant third-party plaintiff-appellant in Appeal No. 1 and defendant third-party plaintiff-respondent in Appeal No. 2.

London Fischer LLP, New York, N.Y. (Richard L. Mendelsohn of counsel), for Amsterdam & 76th Associates, LLC, defendant in Appeal No. 1 and defendant-appellant in Appeal No. 2.

Constantinidis & Associates, P.C., Long Island City, N.Y. (Gus J. Constantinidis and Patrick J. Hackett of counsel), for plaintiff-respondent.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In a consolidated action to recover damages for personal injuries and medical malpractice, (1) the defendant-third party plaintiff, Ibex Construction, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (O'Donoghue, J.), dated June 11, 2012, as granted the plaintiff's motion for summary judgment on the issue of liability with respect to the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against it, and denied that branch of its cross motion which was for summary judgment on its third-party cause of action for contractual indemnification and (2), the defendant Amsterdam & 76th Associates, LLC, separately appeals, as limited by its brief, from so much of the same order as granted the plaintiff's motion for summary judgment on the issue of liability with respect to the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against it, and denied that branch of its cross motion, made with the defendant Monadnock Construction, Inc., which was for summary judgment on its cross claim for contractual and common-law indemnification as against the defendant third-party plaintiff, Ibex Construction, LLC, and the third-party defendant, Marble Techniques, Inc., or for summary judgment declaring that it is a third-party beneficiary of certain contracts.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the cross motion of the defendant-third party plaintiff, Ibex Construction, LLC, which was for summary judgment on its third-party cause of action for contractual indemnification, and substituting therefor a provision granting that branch of the cross motion and (2) by deleting the provision thereof denying that branch of the cross motion of the defendants Amsterdam & 76th Associates, LLC, and Monadnock Construction, Inc., which was for summary judgment on the cross claim of Amsterdam & 76th Associates, LLC, for common law indemnification as against the defendant third-party plaintiff, Ibex Construction, LLC, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, Manuel Bermejo, an employee of J.P. Marble & Tile (hereinafter JP Marble), allegedly was injured when the wooden platform of the scaffold upon which he was working collapsed, causing him to fall through the metal framework of the scaffold to the floor below. The plaintiff's coworkers arrived to find one end of the platform on the floor and the other end hanging from the scaffold at a 45–degree angle.

The building where the plaintiff was working at the time of the accident was owned by the defendant Amsterdam & 76th Associates, LLC (hereinafter Amsterdam). Amsterdam had entered into an agreement with Equinox 76th Street, Inc., doing business as Equinox (hereinafter Equinox) to lease certain space within the building. Eclipse Development Corp. (hereinafter Eclipse), on behalf of Equinox, entered into an agreement with the defendant third-party plaintiff, Ibex Construction, LLC (hereinafter Ibex), to act as general contractor for the construction or “build out” of the leased space. Ibex subcontracted with the third-party defendant, Marble Techniques, Inc. (hereinafter Marble), which, in turn, subsubcontracted with JP Marble to install the ceramic wall and floor tile.

The plaintiff sued Amsterdam and Ibex, among others. Ibex then commenced a third-party action against Marble.

The Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240(1) insofar as asserted against Amsterdam and Ibex. Labor Law § 240(1) imposes a nondelegable duty upon the owner, the general contractor, and their agents, to provide scaffolding which is “so constructed, placed and operated as to give proper protection” to employees using it (Labor Law § 240[1] ).

Here, “[s]ince the scaffold collapsed, the plaintiff established, prima facie, that he was not provided with an adequate safety device to do his work, as required by Labor Law § 240(1), and that this statutory violation was a proximate cause of his injury” ( Tapia v. Mario Genovesi & Sons, Inc., 72 A.D.3d 800, 801, 899 N.Y.S.2d 303;see Vasquez v. C2 Dev. Corp., 105 A.D.3d 729, 963 N.Y.S.2d 675;Saldivar v. Lawrence Dev. Realty, LLC, 95 A.D.3d 1101, 945 N.Y.S.2d 324;Campbell v. 111 Chelsea Commerce, L.P., 80 A.D.3d 721, 915 N.Y.S.2d 619;Inga v. EBS N. Hills, LLC, 69 A.D.3d 568, 893 N.Y.S.2d 562;Saeed v. NY/Enterprise City Home Hous. Dev. Fund Corp., 303 A.D.2d 484, 755 N.Y.S.2d 428;Pineda v. Kechek Realty Corp., 285 A.D.2d 496, 727 N.Y.S.2d 175;La Lima v. Epstein, 143 A.D.2d 886, 533 N.Y.S.2d 399).

“Once the plaintiff makes a prima facie showing the burden then shifts to the defendant, who may defeat plaintiff's motion for summary judgment only if there is a plausible view of the evidence—enough to raise a fact question—that there was no statutory violation and that plaintiff's own acts or omissions were the sole cause of the accident” ( Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 289 n. 8, 771 N.Y.S.2d 484, 803 N.E.2d 757;see Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39, 790 N.Y.S.2d 74, 823 N.E.2d 439).

Ibex and Amsterdam contend that the plaintiff's failure to utilize certain clips securing the platform to the scaffold frame was the sole proximate cause of the accident. It is true that “[w]hen a plaintiff handles a scaffold in such a manner as to create the condition causing its collapse, his or her conduct is the sole proximate cause of the accident” ( Berenson v. Jericho Water Dist., 33 A.D.3d 574, 576, 822 N.Y.S.2d 145). Here, however, Ibex and Amsterdam failed to establish prima facie that the accident was caused by the manner in which the plaintiff handled the scaffold ( see Saldivar v. Lawrence Dev. Realty, LLC, 95 A.D.3d at 1103, 945 N.Y.S.2d 324;Campbell v. 111 Chelsea Commerce, L.P., 80 A.D.3d at 722, 915 N.Y.S.2d 619;Inga v. EBS N. Hills, LLC, 69 A.D.3d at 569, 893 N.Y.S.2d 562;cf. Storms v. Dominican Coll. of Blauvelt, 308 A.D.2d 575, 765 N.Y.S.2d 882;Tweedy v. Roman Catholic Church of Our Lady of Victory, 232 A.D.2d 630, 648 N.Y.S.2d 685;Styer v. Vita Constr., 174 A.D.2d 662, 571 N.Y.S.2d 524). Further, a sufficient nexus existed between Amsterdam and the plaintiff to impose liability on the out-of-possession owner under Labor Law § 240(1) ( see Sanatass v. Consolidated Inv. Co., Inc., 10 N.Y.3d 333, 858 N.Y.S.2d 67, 887 N.E.2d 1125;Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912;Vasquez v. C2 Dev. Corp., 105 A.D.3d 729, 963 N.Y.S.2d 675;Wong v. City of New York, 65 A.D.3d 1000, 885 N.Y.S.2d 120;cf. Abbatiello v. Lancaster Studio Assoc., 3 N.Y.3d 46, 781 N.Y.S.2d 477, 814 N.E.2d 784;Scaparo v. Village of Ilion, 13 N.Y.3d 864, 893 N.Y.S.2d 823, 921 N.E.2d 590;Morton v. State of New York, 15 N.Y.3d 50, 904 N.Y.S.2d 350, 930 N.E.2d 271;Guryev v. Tomchinsky, 87 A.D.3d 612, 928 N.Y.S.2d 574,affd.20 N.Y.3d 194, 957 N.Y.S.2d 677, 981 N.E.2d 273).

The Supreme Court erred in denying that branch of Ibex's cross motion which was for summary judgment on its third-party cause of action for contractual indemnification.

“The right to contractual indemnification depends upon the specific language of the contract” ( Roldan v. New York Univ., 81 A.D.3d 625, 628, 916 N.Y.S.2d 162). “[A] party who has been held liable to an injured worker solely on the basis of the statutory liability imposed by section 240(1), without any fault on its part, is entitled to recover under a contract of indemnity” ( Correia v. Professional Data Mgt., Inc., 259 A.D.2d 60, 64, 693 N.Y.S.2d 596;see Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 556 N.Y.S.2d 991, 556 N.E.2d 430;Lazzaro v. MJM Indus., 288 A.D.2d 440, 733 N.Y.S.2d 500).

Here, pursuant to the terms of the indemnification provision of Marble's subcontract with Ibex, Marble was obligated to defend Ibex for “any and all claims, liens, judgments, damages, losses ... arising in whole or in part and in any manner from the act, failure to act, omission, breach or default by [Marble] ... in connection with the performance of this Agreement.”

The Supreme Court found that the indemnification provision was triggered “only if” the accident was...