Brust v. Estee Lauder Inc.

• Decision Date: 30 June 1992
• Citation: 184 A.D.2d 474,585 N.Y.S.2d 432
• Parties: Erick G. BRUST, Plaintiff-Respondent, v. ESTEE LAUDER INCORPORATED, E.W. Howell Co., Inc. and E.W. Howell Co., Defendants-Respondents. ESTEE LAUDER INCORPORATED, Third-Party Plaintiff-Respondent, v. RISE STEEL ERECTION CORP., Third-Party Defendant-Appellant. E.W. HOWELL CO., INC., Second Third-Party Plaintiff-Respondent, v. McLO STRUCTURAL STEEL, Second Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 432

585 N.Y.S.2d 432

184 A.D.2d 474

Erick G. BRUST, Plaintiff-Respondent, v. ESTEE LAUDER INCORPORATED, E.W. Howell Co., Inc. and E.W.

Howell Co., Defendants-Respondents.

ESTEE LAUDER INCORPORATED, Third-Party Plaintiff-Respondent, v. RISE STEEL ERECTION CORP., Third-Party Defendant-Appellant.

E.W. HOWELL CO., INC., Second Third-Party Plaintiff-Respondent, v. McLO STRUCTURAL STEEL, Second Third-Party Defendant-Respondent.

Supreme Court, Appellate Division First Department.

June 30, 1992.

Before CARRO, J.P., and MILONAS, ELLERIN and ROSS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Harold Baer, Jr., J.), entered May 14, 1991, which, inter alia, dismissed the complaint against defendant Estee Lauder, Inc., awarded plaintiff $500,000, plus interest, costs and disbursements, against defendants E.W. Howell Co., Inc. and E.W. Howell Co., awarded said defendants contractual indemnification for the full amount of said judgment against second third-party defendant McLo Structural Steel Corp., and awarded said third-party defendant full common-law indemnification against third-party defendant Rise Steel Erection Corp., unanimously affirmed, with costs.

Plaintiff, an employee of third-party defendant Rise Steel Erection Corp., was injured when struck on the upper right arm by a 15-inch spud wrench that was dropped from above by a fellow employee in the course of erection of the steel skeletal frame of a warehouse facility. The jury found defendant owner Estee Lauder and the general contractor Howell defendants liable for violations of their Labor Law § 200 duty to provide a safe place to work, and also found said general contractor liable for violations of Labor Law § 240 and § 241(6). Third-party defendants McLo and Rise Steel were found by the jury to be also partially at fault for violations of Labor Law § 200, and the jury apportioned damages amongst the four entities found to be culpable.

The trial justice dismissed the Labor Law § 200 claim against defendant owner Lauder on grounds that it did not exercise supervision or control over the construction site or the subcontractor's work and that the injury to plaintiff was attributable to the manner in which the subcontractor prosecuted the work and the subcontractor's plant. While defendant McLo was also found liable under § 200, that result too was implicitly vacated by the trial court's findings as to a similar lack of any supervision or control by McLo (see, Olsen v. Chase Manhattan Bank, 10 A.D.2d 539, 205 N.Y.S.2d 60, affd., 9 N.Y.2d 829, 215 N.Y.S.2d 773, 175 N.E.2d 350; Bidetto v. New York City Hous. Auth., 25 N.Y.2d 848, 303 N.Y.S.2d 695, 250 N.E.2d 735; Chaney v. New York City Tr. Auth., 12 A.D.2d 61, 208 N.Y.S.2d 205, affd., 10 N.Y.2d 871, 223 N.Y.S.2d 502, 179 N.E.2d 507). General contractor Howell's liability was subject to contractual indemnification by McLo, which had merely fabricated the steel and delivered it to the site, since those parties' subcontract predated the 1981 amendments to General Obligations Law § 5-322.1 (see, Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 556...