D'Amico v. Manufacturers Hanover Trust Co.

• Decision Date: 26 November 1991
• Citation: 177 A.D.2d 441,576 N.Y.S.2d 536
• Parties: Salvatore D'AMICO et al., Plaintiffs-Appellants, v. MANUFACTURERS HANOVER TRUST CO., et al., Defendants-Respondents, and Cheseboro/Whitman Co., Inc., et al., Defendants-Respondents. MANUFACTURERS HANOVER TRUST CO., et al., Third-Party Plaintiffs-Respondents-Appellants, v. ALLIED MAINTENANCE CORP., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 536

576 N.Y.S.2d 536

177 A.D.2d 441

Salvatore D'AMICO et al., Plaintiffs-Appellants, v. MANUFACTURERS HANOVER TRUST CO., et al., Defendants-Respondents, and Cheseboro/Whitman Co., Inc., et al., Defendants-Respondents.

MANUFACTURERS HANOVER TRUST CO., et al., Third-Party Plaintiffs-Respondents-Appellants, v. ALLIED MAINTENANCE CORP., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Nov. 26, 1991.

Before MURPHY, P.J., and SULLIVAN, ROSENBERGER, KASSAL and SMITH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered February 26, 1990, which, inter alia, denied the plaintiffs' and the defendants Manufacturers Hanover Trust Co. and Cross and Brown Co.'s cross motions for summary judgment, unanimously modified, on the law, by granting partial summary judgment to the plaintiffs pursuant to Labor Law § 240(1), and otherwise affirmed, without costs.

The plaintiff Salvatore D'Amico, a window-washer employed by third-party defendant Allied Maintenance Corp., instituted this action to recover damages for personal injuries sustained on April 8, 1986, when he allegedly fell off a wooden sectional ladder while washing windows at 4 New York Plaza. Allied had purportedly purchased its ladders from the defendant Manhattan Ladder Co., Inc., which had purchased ladders from the defendants, suppliers Cheseboro/Whitman Co., Inc., Patent Scaffolding Co., Inc. and Harsco Corp. Based on Allied's inability to produce the ladder involved in the accident, all cross-claims against the suppliers were dismissed by this court (D'Amico v. Manufacturers Hanover Trust Co., 173 A.D.2d 263, 569 N.Y.S.2d 962). The plaintiffs also discontinued their claims against these companies.

The plaintiff stated, at an examination before trial, that while standing on the ladder furnished by his employer, Allied, the sides cracked causing him to fall to the ground. His co-worker, Louis Hock, saw the plaintiff fall and noticed after the accident, that the side rail of the ladder had cracked, splitting into two pieces.

Cheseboro/Whitman, Patent Scaffolding and Harsco Corp. initially moved for summary judgment. Manhattan Ladder Co., Inc. moved for similar relief. The plaintiffs then cross moved for summary judgment against Manufacturers Hanover Trust Co. ("MHT"), the owner of the premises where the plaintiff was working and Cross and Brown Company, the managing agent of the building, based on a violation of Labor Law § 240(1). MHT and Cross and Brown then cross moved for summary judgment against Allied on a theory of indemnification. The Supreme Court denied the parties' motions.

We modify the order appealed from to grant partial summary judgment to the plaintiffs against MHT and Cross and Brown and otherwise affirm. It is well-settled that Labor Law § 240(1) imposes absolute liability upon an owner, contractor and their agents for failing to provide or erect safety devices necessary to protect a worker who sustains injuries proximately caused by that failure (Bland v. Manocherian, 66 N.Y.2d 452, 497 N.Y.S.2d 880, 488 N.E.2d 810; Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898, rearg. denied, 65 N.Y.2d 1054, 494 N.Y.S.2d 1033, 484 N.E.2d 1055). A ladder falls within the category of "safety devices" (Bland v. Manocherian, supra ).

Despite the failure to produce the ladder, the uncontroverted evidence establishes that the cause of the accident herein was the cracking of the side of the wooden ladder. The plaintiff's testimony was consistent and was corroborated by his co-worker who witnessed the accident (cf. Russell v. Rensselaer Polytechnic Institute, 160 A.D.2d 1215, 555 N.Y.S.2d 480; Donohue v. Elite Assocs., 159 A.D.2d 605, 552 N.Y.S.2d 659; Antunes v. 950 Park Ave. Corp., 149 A.D.2d 332, 539 N.Y.S.2d 909; Alston v. Golub Corp., 129 A.D.2d 916, 514 N.Y.S.2d 553; Braun v. Dormitory Auth. of the State of New York, 118...