Haynes v. Boricua Vill. Hous. Dev. Fund Co.

• Decision Date: 14 March 2019
• Docket Number: 8385,Index 305322/14
• Citation: 170 A.D.3d 509,96 N.Y.S.3d 178
• Parties: Ewart A. HAYNES, Plaintiff–Respondent, v. BORICUA VILLAGE HOUSING DEVELOPMENT FUND COMPANY, INC., et al., Defendants–Appellants. Boricua Village Housing Development Fund Company, Inc., et al., Third–Party Plaintiffs–Appellants. v. United Commercial Development, LLC, et al., Third–Party Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 509

96 N.Y.S.3d 178

Ewart A. HAYNES, Plaintiff–Respondent,

v.BORICUA VILLAGE HOUSING DEVELOPMENT FUND COMPANY, INC., et al., Defendants–Appellants.

Boricua Village Housing Development Fund Company, Inc., et al., Third–Party Plaintiffs–Appellants.

v.United Commercial Development, LLC, et al., Third–Party Defendants–Respondents.

8385

Index 305322/14

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

ENTERED: MARCH 14, 2019

Carol R. Finocchio, New York, for appellants.

The Perecman Firm, P.L.L.C., New York (David H. Perecman of counsel), for Ewart A. Haynes, respondent.

Linda A. Stark, New York, for United Commercial Development, LLC, respondent.

Law Office of Kevin P. Westerman, Garden City (Jonathan R. Walsh of counsel), for Evergreen Electrical Corp., respondent.

Renwick, J.P., Manzanet–Daniels, Oing, Moulton, JJ.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about June 20, 2018, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 241(6) claim as against defendants Boricua Village Housing Development Fund Company, Inc., Boricua Village F, LLC, and Knickerbocker Construction II, LLC (Knickerbocker) (collectively, defendants), denied Knickerbocker's motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims as against it, denied Knickerbocker's motion for summary judgment on its contractual indemnification claims against third-party defendants United Commercial Development, LLC (United) and Evergreen Electrical Corp. (Evergreen), and denied defendants' motion for summary judgment on their common-law indemnification claim against Evergreen, unanimously affirmed, without costs.

Supreme Court was correct in granting plaintiff partial summary judgment on the Labor Law § 241(6) claim. Plaintiff's deposition testimony and an affidavit by his supervisor, Maldonado, who did not witness the accident but arrived at the scene shortly thereafter, indicated that plaintiff was performing his assigned tasks of installing pins in a drop ceiling using a Hilti gun when he received an electrical shock, and that exposed, uncapped electrical wiring was seen hanging from the ceiling in the vicinity of where plaintiff was working. His co-worker, Eagan, further averred that after plaintiff's accident he observed electricians, who were working in the building, arriving at the accident site and capping the exposed wires. The owner of plaintiff's employer, Calhoun, however, testified that when he arrived at the accident site, he saw no exposed wiring or any other signs of anything unusual. This apparent discrepancy does not raise a factual issue because the employer also testified that he came onto the scene 20 to 30 minutes after the accident. As such, defendants have failed to raise an issue of fact as to whether they violated Industrial Code 12 NYCRR §§ 23–1.13(b)(3) and (4), and that such violation proximately caused plaintiff's injuries (see Rubino v. 330 Madison Co., LLC, 150 A.D.3d 603, 604, 56 N.Y.S.3d 55 [1st Dept. 2017] ).

The court properly denied Knickerbocker's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as...