Lopez–Dones v. 601 W. Assocs., LLC

• Decision Date: 01 August 2012
• Citation: Lopez–Dones v. 601 W. Assocs., LLC, 98 A.D.3d 476, 949 N.Y.S.2d 165, 2012 N.Y. Slip Op. 5803 (N.Y. App. Div. 2012)
• Court: New York Supreme Court — Appellate Division
• Parties: Brunilda LOPEZ–DONES, appellant-respondent, v. 601 WEST ASSOCIATES, LLC, et al., respondents, B.R. Fries & Associates, Inc., defendant second third-party plaintiff-respondent-appellant, B.R. Fries & Associates, LLC, respondent-appellant, Ronsco, Inc., defendant third-party plaintiff-respondent-appellant, Capital Ceiling Systems, Inc., et al., defendants third-party defendants-respondents; Falcon Electrical Contracting Corp., second third-party defendant-appellant-respondent.

98 A.D.3d 476

949 N.Y.S.2d 165

2012 N.Y. Slip Op. 05803

Brunilda LOPEZ–DONES, appellant-respondent,

v. 601 WEST ASSOCIATES, LLC, et al., respondents,B.R. Fries & Associates, Inc., defendant second third-party plaintiff-respondent-appellant,B.R. Fries & Associates, LLC, respondent-appellant,Ronsco, Inc., defendant third-party plaintiff-respondent-appellant,Capital Ceiling Systems, Inc., et al., defendants third-party defendants-respondents;Falcon Electrical Contracting Corp., second third-party defendant-appellant-respondent.

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

Aug. 1, 2012.

Stefano A. Filippazzo, Brooklyn, N.Y. (Louis A. Badolato of counsel), for appellant-respondent.

O'Connor Redd LLP, White Plains, N.Y. (Amy Lynn Fenno of counsel), for second third-party defendant-appellant-respondent.

James J. Toomey, New York, N.Y. (Eric P. Tosca of counsel), for defendant second third-party plaintiff-respondent-appellant and respondent-appellant.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Louise Cherkis of counsel), for defendant third-party plaintiff-respondent-appellant.

Haworth Coleman & Gerstman, LLC, New York, N.Y. (Nora Coleman of counsel), for respondents.

Quirk and Bakalor, P.C., New York, N.Y. (Jeanne M. Boyle of counsel), for defendant third-party defendant-respondent Capital Ceiling Systems, Inc.

Hodgson Russ, LLP, New York, N.Y. (Margaret M. Cmielewski of counsel), for defendant third-party defendant-respondent Sunset Interiors Corp.

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated January 5, 2010, as denied those branches of her motion which were for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants 601 West Associates, LLC, Tommy Hilfiger U.S.A., Inc., and B.R. Fries & Associates, LLC, and the defendant second third-party plaintiff, B.R. Fries & Associates, Inc.; the second third-party defendant, Falcon Electrical Contracting Corp., separately appeals, as limited by its brief, from so much of the same order as denied that branch of its cross motion which was for summary judgment dismissing the cause of action in the second third-party complaint for contractual indemnification; the defendant B.R. Fries & Associates, LLC, and the defendant second third-party plaintiff, B.R. Fries & Associates, Inc., cross-appeal, as limited by their brief, from so much of the same order as denied those branches of their cross motion which were for summary judgment on their cross claims against the defendant third-party plaintiff, Ronsco, Inc., for contractual indemnification and common-law indemnification and on the causes of action in the second third-party complaint for contractual indemnification and common-law indemnification; and the defendant third-party plaintiff, Ronsco, Inc., cross appeals, as limited by its brief, from so much of the same order as denied those branches of its cross motion which were for summary judgment dismissing the common-law negligence cause of action insofar as asserted against it and the cross claims of the defendant B.R. Fries & Associates, LLC, and the defendant second third-party plaintiff, B.R. Fries & Associates, Inc., for contractual indemnification and common-law indemnification insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from by the plaintiff, on the law, and those branches of the plaintiff's motion which were for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants 601 West Associates, LLC, Tommy Hilfiger U.S.A., Inc., and B.R. Fries & Associates, LLC, and the defendant second third-party plaintiff, B.R. Fries & Associates, Inc., is granted; and it is further,

ORDERED that the order is affirmed insofar as appealed from by the second third-party defendant, Falcon Electrical Contracting Corp., and insofar as cross-appealed from, and, upon searching the record, summary judgment is awarded to the defendant B.R. Fries & Associates, LLC, and the defendant second third-party plaintiff, B.R. Fries & Associates, Inc., dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against them; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendants 601 West Associates, LLC, Tommy Hilfiger U.S.A., Inc., and B.R. Fries & Associates, LLC, and the defendant second third-party plaintiff, B.R. Fries & Associates, Inc.

The defendant Tommy Hilfiger, U.S.A., Inc. (hereinafter Hilfiger), which leased certain commercial premises from the defendant 601 West Associates, LLC (hereinafter 601 West), engaged the defendant B.R. Fries & Associates, LLC, or the defendant second third-party plaintiff, B.R. Fries & Associates, Inc. (hereinafter together the BRF defendants), as general contractor for the renovation of the premises. Pursuant to a subcontract with the BRF defendants, the defendant third-party plaintiff, Ronsco, Inc. (hereinafter Ronsco), performed certain drywall and ceiling work. Pursuant to sub-subcontracts with Ronsco, the defendant third-party defendant Sunset Interiors Corp. (hereinafter Sunset) performed the drywall finishing work, and the defendant third-party defendant Capital Ceiling Systems, Inc. (hereinafter Capital), performed certain ironwork. Pursuant to a subcontract with the BRF defendants, the second third-party defendant, Falcon Electrical Contracting Corp. (hereinafter Falcon) performed certain electrical work.

The plaintiff was an apprentice electrician employed by Falcon. At her depositions, she recounted that, on the morning of June 1, 2005, she reported to work at the premises. Soon after her arrival, her supervisor, also a Falcon employee, directed her to perform certain electrical work on a particular “pull box” hanging from a ceiling. Neither her supervisor nor anyone else provided the plaintiff with a safety device, or assigned someone to help her with her work.

The plaintiff carried an A-frame ladder over to the pull box. The pull box was hanging from a ceiling in an open space, without any nearby walls. Other tradespeople were working throughout that space. After making sure that the area beneath the pull box was clear of debris, the plaintiff “completely” opened the ladder. She then pulled down on the ladder's hinges, which locked into place. She then conducted a visual inspection of the ladder, which revealed no cracks and that the ladder's feet were level with the concrete floor. She then shook the ladder and was satisfied that it was stable. She then ascended the ladder. After checking the area to make sure that no tradespeople were beneath her, she began performing the work on the pull box.

For the next few hours, the plaintiff performed her work without incident. The work required her to focus her attention upwards, inside of the pull box. At some point while she was working, an unidentified man pushing a loaded dolly past the ladder caused the dolly to come into contact with the ladder, and the impact caused the ladder to tip. The ladder did not fall to the concrete floor, but, rather, came into contact with a nearby air conditioning duct. The plaintiff, who lost her footing, “immediately” reacted to the impact by grabbing onto a metal rod extending from the ceiling. She had to “twist [ ]” her body in order to reach the metal rod, and was able to hook her leg into the ladder, get the ladder back to its upright position, and regain her footing on the ladder.

The plaintiff allegedly sustained certain injuries as a result of her attempt to avoid a fall from the...