Cando v. Ajay Gen. Contracting Co.

• Decision Date: 08 December 2021
• Docket Number: 2018-06608,Index No. 14172/14
• Parties: Jorge Luis Auquilla CANDO, plaintiff-respondent, v. AJAY GENERAL CONTRACTING CO. INC., defendant third-party plaintiff/second third-party plaintiff-respondent, Scottye Kennedy, et al., defendants-appellants; FJP Mechanical, Inc., third-party defendant; PCL Custom Remodeling, Inc., second third-party defendant-appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 750

160 N.Y.S.3d 261

Jorge Luis Auquilla CANDO, plaintiff-respondent,

v. AJAY GENERAL CONTRACTING CO. INC., defendant third-party plaintiff/second third-party plaintiff-respondent,Scottye Kennedy, et al., defendants-appellants;FJP Mechanical, Inc., third-party defendant;PCL Custom Remodeling, Inc., second third-party defendant-appellant.

2018-06608

Index No. 14172/14

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

Argued—October 8, 2021

December 8, 2021

Gallo Vitucci Klar LLP, New York, NY (John U.H. Blumenstock of counsel), for second third-party defendant-appellant.

Martyn, Martyn, Smith & Murray, Mineola, NY (Christina J. Hill of counsel), for defendants-appellants.

Gerber Ciano Kelly Brady LLP, Garden City, NY (James P. Gilroy of counsel), for defendant third-party plaintiff/second third-party plaintiff-respondent.

WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the second third-party defendant appeals, and the defendants Scottye Kennedy and Joanna Kennedy separately appeal, from an order of the Supreme Court, Queens County (Salvatore J. Modica, J.), entered March 15, 2018. The order, insofar as appealed from by the second third-party defendant, denied those branches of its motion which were for summary judgment dismissing the second third-party complaint and the complaint in a related action. The order, insofar as appealed from by the defendants Scottye Kennedy and Joanna Kennedy, denied their motion for leave to renew their prior motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, which was denied in an order of the same court entered June 16, 2016.

ORDERED that the order entered March 15, 2018, is affirmed insofar as appealed from, with one bill of costs to Ajay General Contracting Co., Inc., payable by the appellants appearing separately and filing separate briefs.

The plaintiff fell as he was descending an extension ladder while working for a plumbing subcontractor at a house owned by the defendants Scottye Kennedy and Joanna Kennedy (hereinafter together the Kennedys). At the time of the accident, the Kennedys were adding a second floor to the house. The Kennedys had hired the defendant Ajay General Contracting Co., Inc. (hereinafter Ajay), as the general contractor, and Ajay subcontracted the carpentry and other work to the second third-party defendant PCL Custom Remodeling, Inc. (hereinafter PCL). The existing staircase to the second floor had been removed prior to the accident. The extension ladder from which the plaintiff fell had been used by him to gain access to the second floor.

The plaintiff commenced this action against Ajay and the Kennedys to recover damages for personal injuries alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. Ajay subsequently commenced a third-party action against FJP Mechanical, Inc., and thereafter, commenced a second third-party action against PCL asserting causes of action for contractual and common-law indemnification and contribution, and breach of its contractual obligation to obtain insurance. The plaintiff subsequently commenced a related action directly against PCL.

By order entered June 16, 2016, the Supreme Court denied the Kennedys’ motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against them, on the ground that they failed to meet their prima facie burden of establishing application of the homeowner exemption from liability under the Labor Law. The Kennedys subsequently moved for leave to renew their prior motion for summary judgment, submitting affidavits indicating, inter alia, that they did not use their house for commercial purposes. PCL separately moved, among other things, for summary judgment dismissing the second third-party complaint in this action and the complaint in the related action. By order entered March 15, 2018, the court, inter alia, denied those branches of PCL's motion and denied the Kennedys’ motion for leave to renew. PCL appeals and the Kennedys separately appeal.

Those branches of PCL's motion which were for summary judgment dismissing the second third-party causes of action for contractual and common-law indemnification were properly denied. " ‘[I]t is elementary that the right to contractual indemnification depends upon the specific language of the contract’ " ( Kader v. City of N.Y., Hous. Preserv. & Dev., 16 A.D.3d 461, 463, 791 N.Y.S.2d 634, quoting Gillmore v. Duke/Fluor Daniel, 221 A.D.2d 938, 939, 634 N.Y.S.2d 588 ; see Garcia v. Emerick Gross Real Estate, L.P., 196 A.D.3d 676, 152 N.Y.S.3d 462 ). Here, the second third-party cause of action for contractual indemnification was based on a subcontract between Ajay and PCL, pursuant to which PCL agreed, among other things, to indemnify Ajay if PCL or one of its subcontractors was negligent. PCL failed to demonstrate its prima face entitlement to judgment as a matter of law by establishing that the plaintiff's accident was not "caused in whole or in part by any negligent act or omission of [PCL]," such that the indemnification clause was not triggered (see Mikelatos v. Theofilaktidis, 105 A.D.3d 822, 824, 962 N.Y.S.2d 693 ; Perales v. First Columbia 1200 NSR, LLC, 88 A.D.3d 1213, 1214, 932 N.Y.S.2d 211 ; see generally Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 178, 556 N.Y.S.2d 991, 556 N.E.2d 430 ).

"In order to establish a claim for common-law indemnification, a party must prove not only that it was not negligent, but also that the proposed indemnitor's actual negligence contributed to the accident, or, in the absence of any negligence, that the indemnitor had the authority to direct, supervise, and control the work giving rise to the injury" ( Mohan v. Atlantic Ct., LLC, 134 A.D.3d 1075, 1078–1079, 24 N.Y.S.3d 102 ). Thus, a party moving for summary judgment dismissing a common-law indemnification claim can meet its prima facie burden by establishing that the plaintiff's accident was not due to its own negligence (see Mikelatos v. Theofilaktidis, 105 A.D.3d at 824, 962 N.Y.S.2d 693 ). Here, PCL failed to affirmatively demonstrate that it was free from negligence, as there are triable issues of fact as to whether it owned, furnished, or placed the ladder from which the plaintiff fell. In light of PCL's failure to meet its prima facie burden of demonstrating its entitlement to judgment as a matter of law dismissing the second third-party causes of action for contractual and common-law indemnification and contribution, we need not consider the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

The Supreme Court properly denied that branch of PCL's motion which was to dismiss the complaint in the related action. " ‘[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party’ " ( Arnone v. Morton's of Chicago/Great Neck, LLC, 183 A.D.3d 862, 862, 122 N.Y.S.3d 553, quoting Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). However, "[a] contractor may be said to have assumed a duty of care and, thus, be potentially liable in tort, to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm" ( Bruce v. Edgewater Indus. Park, LLC, 169 A.D.3d 753, 754, 92 N.Y.S.3d 383, citing Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). Contrary to PCL's contention, the complaint in the related action alleged facts which would establish that PCL launched a force or instrument of harm by alleging that PCL provided the plaintiff with an unsecured and unstable ladder, which caused his injuries (see Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d at 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). PCL failed to establish its prima facie entitlement to judgment as a matter of law, as it did not establish that it did not create or launch an instrument of harm (see Santibanez v. North Shore Land Alliance, Inc., 197 A.D.3d 1123, 1124–1125, 153 N.Y.S.3d 497 ; Ramsey v. Temco Serv. Indus., Inc., 179 A.D.3d 726, 728, 117 N.Y.S.3d 85 ). PCL's submissions demonstrated the existence of triable issues of fact regarding whether it launched a force or instrument of harm by furnishing or placing an unsecured and unstable ladder as the only means by which the plaintiff could access the second floor to perform his work, which caused the plaintiff's injuries (see Santibanez v. North Shore Land Alliance, Inc., 197 A.D.3d at 1124–1125, 153 N.Y.S.3d 497 ; Ramsey v. Temco Serv. Indus., Inc., 179 A.D.3d at 728, 117 N.Y.S.3d 85 ).

With respect to the first cause of action alleging common-law negligence and the second cause of action alleging a violation of Labor Law § 200, a subcontractor "may be held liable for negligence where the work it performed created the condition that caused the plaintiff's injury even if it did not possess any authority to supervise and control the plaintiff's work or work area" ( Poracki v. St. Mary's R.C. Church, 82 A.D.3d 1192, 1195, 920 N.Y.S.2d 233 [internal quotation marks omitted]; see Sledge v. S.M.S. Gen. Contrs., Inc., 151 A.D.3d 782, 783, 54 N.Y.S.3d 666 ; Erickson v. Cross Ready Mix, Inc., 75 A.D.3d 519, 523, 906...