Cackett v. Gladden Props., LLC

• Decision Date: 07 May 2020
• Docket Number: 11455,Index 157267/14,11455A
• Citation: 183 A.D.3d 419,123 N.Y.S.3d 581
• Parties: Scott CACKETT, Plaintiff, v. GLADDEN PROPERTIES, LLC, et al., Defendants–Appellants–Respondents, Forest Electric Corp., Defendant, Interstate Drywall Corp., Defendant–Respondent, KD Electric, Inc., Defendant–Respondent–Appellant. Gladden Properties, LLC, et al., Third–Party Plaintiffs–Appellants–Respondents, v. Port Morris Tile & Marble Corporation, et al., Third–Party Defendants–Respondents, Weinstein & Holtzman, Defendant. Gladden Properties, LLC, et al., Second Third–Party Plaintiffs–Appellants– Respondents, v. KD Electric, Inc., Second Third–Party Defendant–Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 419

123 N.Y.S.3d 581

Scott CACKETT, Plaintiff,

v.GLADDEN PROPERTIES, LLC, et al., Defendants–Appellants–Respondents,Forest Electric Corp., Defendant,Interstate Drywall Corp., Defendant–Respondent,KD Electric, Inc., Defendant–Respondent–Appellant.

Gladden Properties, LLC, et al., Third–Party Plaintiffs–Appellants–Respondents,

v.Port Morris Tile & Marble Corporation, et al., Third–Party Defendants–Respondents,Weinstein & Holtzman, Defendant.

Gladden Properties, LLC, et al., Second Third–Party Plaintiffs–Appellants– Respondents,

v.KD Electric, Inc., Second Third–Party Defendant–Respondent–Appellant.

11455

11455A

Index 157267/14

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

ENTERED: MAY 7, 2020

Barry McTiernan & Moore LLC, New York (Laurel A. Wedinger of counsel), for appellants-respondents.

Farber Brocks & Zane LLP, Garden City (Charles T. Ruhl of counsel), for respondent-appellant.

Hannum Feretic Prendergast & Merlino, LLC, New York (Jessica M. Erickson of counsel), for Interstate Drywall Corp., respondent.

Pillinger Miller Tarallo, LLP, Elmsford (Michael Neri of counsel), for Port Morris Tile & Marble Corporation, respondent.

Manzanet–Daniels, J.P., Mazzarelli, Gesmer, Moulton, JJ.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered January 8, 2019, which, to the extent appealed from as limited by the briefs, denied defendants Gladden Properties, LLC, Boston Properties, Inc., Structure Tone, Inc., and Kaye Scholer, LLP's (collectively, the Structure Tone defendants) motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against them and on their contractual indemnification claims against defendant Interstate Drywall Corp. (Interstate), defendant KD Electric, Inc. (KD), and third-party defendant Port Morris Tile & Marble Corporation (Port Morris), granted Port Morris's motion for summary judgment dismissing the third party complaint as against it, and granted KD's motion for summary judgment dismissing the Structure Tone defendants' cross claims against it, unanimously modified, on the law, to deny KD's motion and Port Morris's motion as to the contractual indemnification claim against it, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered April 17, 2019, which, upon renewal and reargument, adhered to the original determination, unanimously dismissed, without costs, as academic.

Plaintiff was allegedly injured when a heavy metal door that had been stored in an inadequately lit room fell over on him. Except as to defendant Port Morris, plaintiff's employer, and contrary to the appealing parties' contentions, the record is replete with issues of fact and credibility precluding summary judgment on the Labor Law § 200 and common-law negligence claims as against the Structure Tone defendants, the owners, occupant and general contractor, and on the common-law indemnification, contractual indemnification, and contribution cross claims and third-party claims, particularly because "there can be more than one proximate cause of an accident" ( Sussman v. MK LCP Rye LLC, 164 A.D.3d 1139, 1140, 82 N.Y.S.3d 405 [1st Dept. 2018] ).

Issues of fact exist as to whether the accident was caused by a dangerous premises condition or a subcontractor's means and methods, or some combination of those factors, and as to the Structure Tone defendants' liability under the applicable standard (see Reyes v. Arco Wentworth Mgt. Corp., 83 A.D.3d 47, 51–52, 919 N.Y.S.2d 44 [2d Dept. 2011] ; Cook v. Orchard Park Estates, Inc., 73 A.D.3d 1263, 1265, 902 N.Y.S.2d 674 [3d Dept. 2010] ; see also PJI 2:216, Comment, Caveat 1 ["The distinction between accidents arising from premises conditions and those arising from the manner in which the work was performed ... may be nuanced"] ).

The claims against defendant KD for common-law negligence and contribution should not be dismissed. As a subcontractor and therefore the statutory agent of the owner and general contractor, KD stands in the shoes of the owner and general contractor, and may be held liable if it "actually created the dangerous condition or had actual or constructive notice of it" ( DeMaria v. RBNB 20 Owner, LLC, 129 A.D.3d 623, 625, 12 N.Y.S.3d 79 [1st Dept. 2015] ; see Sledge v. S.M.S. Gen. Contrs., Inc., 151 A.D.3d 782, 783, 54 N.Y.S.3d 666 [2d Dept. 2017] ). Issues of fact exist as to whether KD, which was responsible for lighting the premises, caused or created the purportedly inadequate lighting of the room in which the metal door was stored or had actual or constructive notice of the inadequate lighting.

As to defendant Interstate, there is evidence that its employee negligently stored the door in the inadequately lit room, where it remained until it fell and struck plaintiff. Contrary to the motion court's finding, the employee's placement of the door was not so remote in time as to sever the causal connection between the alleged negligence and plaintiff's accident (see Williams v. State of New York, 18 N.Y.3d 981, 984, 946 N.Y.S.2d 81, 969 N.E.2d 197 [2012] ; Hoggard v. Otis El. Co., 52 Misc.2d 704, 707–708, 276 N.Y.S.2d 681 [Sup. Ct. N.Y. County 1966], affd 28 A.D.2d 1207, 285 N.Y.S.2d 262 [1st Dept. 1967], lv denied 21 N.Y.2d 641, 287 N.Y.S.2d 1026, 234 N.E.2d 716 [1968] ; see also 79 N.Y. Jur 2d, Negligence § 65 ). Nor is Interstate absolved from liability by whatever mitigation may have resulted from the employee informing the Structure Tone defendants of his actions. The trier of fact must determine whether Interstate's actions or inaction were a proximate cause of plaintiff's accident (see generally Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 142–143, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). To the extent the court's observation that Structure Tone's cross claims against Interstate for common-law indemnification and contribution "will not stand" may be read as dismissing those claims, we clarify that the claims should not be dismissed.

As for the Structure Tone defendants' contractual indemnification claim against Port Morris, Port Morris agreed to indemnify Structure Tone for claims...