McDonnell v. Sandaro Realty, Inc.

• Decision Date: 24 October 2018
• Docket Number: 2015–06171,Index No. 8727/11
• Parties: Matthew MCDONNELL, et al., plaintiffs-respondents- appellants, v. SANDARO REALTY, INC., defendant- respondent-appellant, E.W. Howell Co., LLC, defendant third-party plaintiff-respondent-appellant; Bay Structures, Inc., third-party defendant-respondent- appellant; J & R Brick Masonry, Inc., third-party defendant-appellant-respondent (and another third-party action).
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 1090

87 N.Y.S.3d 86

Matthew MCDONNELL, et al., plaintiffs-respondents- appellants,

v. SANDARO REALTY, INC., defendant- respondent-appellant,E.W. Howell Co., LLC, defendant third-party plaintiff-respondent-appellant;Bay Structures, Inc., third-party defendant-respondent- appellant;J & R Brick Masonry, Inc., third-party defendant-appellant-respondent (and another third-party action).

2015–06171

Index No. 8727/11

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

Argued - March 28, 2017

October 24, 2018

Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia and Glenn A. Kaminska, New York, of counsel), for third-party defendant-appellant-respondent, J & R Brick Masonry, Inc.

Ruth E. Bernstein, New York, NY, for plaintiffs-respondents-appellants, Matthew McDonnell and Whitney Luther.

Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Meredith Drucker Nolen and Nicholas Hurzeler of counsel), for defendant-respondent-appellant, Sandaro Realty, Inc.

Traub Lieberman Straus & Shrewsberry, LLP, Hawthorne, N.Y. (Mario Castellitto, New York, of counsel), for defendant third-party plaintiff-respondent-appellant, E.W. Howell Co., LLC.

Camacho Mauro Mulholland, LLP, New York, N.Y. (Andrea Sacco Camacho, New York, of counsel), for third-party defendant-respondent-appellant, Bay Structures, Inc.

MARK C. DILLON, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., J & R Brick Masonry, Inc., appeals, and the plaintiffs, E.W. Howell Co., LLC, Bay Structures, Inc., and Sandaro Realty, Inc., each separately cross-appeal, from stated portions of an order of the Supreme Court, Nassau County (Denise L. Sher, J.), entered May 26, 2015. The order, among other things, (1) denied that branch of the motion of E.W. Howell Co., LLC, which was for summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action insofar as asserted against it; (2) denied that branch of the plaintiffs' motion which was for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action insofar as asserted against Sandaro Realty, Inc.; and (3), in effect, granted that branch of the motion of J & R Brick Masonry, Inc., which was pursuant to CPLR 3126 to impose sanctions for spoliation to the extent of striking the third-party complaint of E.W. Howell Co., LLC, and precluding E.W. Howell Co., LLC, from introducing at trial any evidence as to the condition of the subject scaffold or plank.

ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting so much of the first decretal paragraph thereof as denied that branch of the plaintiffs' motion which was 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 Sandaro Realty, Inc., and substituting therefor a provision granting that branch of the motion, (2) by deleting so much of the third decretal paragraph thereof as denied that branch of the motion of Bay Structures, Inc., which was for summary judgment dismissing the third-party causes of action and cross claims asserted against it for common-law indemnification and contribution, and substituting therefor a provision granting that branch of the motion, (3) by deleting so much of the fifth decretal paragraph thereof as granted that branch of the motion of J & R Brick Masonry, Inc., which was for summary judgment dismissing the third-party complaint and all cross claims insofar as asserted against it, and substituting therefor a provision denying that branch of the motion, (4) by deleting from the sixth decretal paragraph thereof determining that branch of the motion of J & R Brick Masonry, Inc., which was for summary judgment on its cross claim against Bay Structures, Inc., for common-law indemnification and on its counterclaim against E.W. Howell, Inc., for common-law indemnification the words "rendered moot," and substituting therefor the word "denied," (5) by deleting the seventh decretal paragraph thereof, in effect, granting that branch of the motion of J & R Brick Masonry, Inc., which was pursuant to CPLR 3126 to impose sanctions for spoliation to the extent of striking the third-party complaint of E.W. Howell Co., LLC, and precluding E.W. Howell Co., LLC, from introducing at trial any evidence as to the condition of the subject scaffold or plank, and substituting therefor a provision granting that branch of the motion to the extent of directing that if E.W. Howell Co., LLC, presents evidence at trial as to the condition of the subject scaffold or plank, then an adverse inference charge shall be given against it with respect to the scaffold or plank, (6) by deleting so much of the ninth decretal paragraph thereof as granted those branches of the cross motion of Sandaro Realty, Inc., which were for conditional summary judgment on its causes of action against Bay Structures, Inc., for contractual and common-law indemnification, and substituting therefor a provision denying that branch of the cross motion, (7) by deleting the eleventh decretal paragraph thereof determining those branches of the motion of E.W. Howell Co., LLC, which were with respect to causes of action for contractual and common-law indemnification, and substituting therefor a provision denying those branches of the motion of E.W. Howell Co., LLC, which were for conditional summary judgment in favor of it and Sandaro Realty, Inc., on the third-party causes of action against J & R Brick Masonry, Inc., for common-law and contractual indemnification, and for conditional summary judgment on their causes of action against Bay Structures, Inc., for contractual indemnification, and (8) by deleting the fourth and twelfth decretal paragraphs thereof determining those branches of the separate motions of E.W. Howell, LLC, and Bay Structures, Inc., which were with respect to the third-party causes of action of E.W. Howell, LLC, alleging, in effect, breach of contract for failure to procure insurance, and substituting therefor a provision denying that branch of the motion of E.W. Howell Co., LLC, which was for summary judgment in favor of it and Sandaro Realty, Inc., on the third-party causes of action against Bay Structures, Inc., and J & R Brick Masonry, Inc., alleging, in effect, breach of contract to procure insurance, and granting those branches of the separate motions of Bay Structures, Inc., and J & R Brick Masonry, Inc., which were for summary judgment dismissing the third-party causes of action of E.W. Howell Co., LLC, alleging, in effect, breach of contract for failure to procure insurance insofar as asserted against each of them; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the plaintiffs payable by Sandaro Realty, Inc.

In this action, the plaintiffs, Matthew McDonnell, and his wife suing derivatively, allege that McDonnell was injured on or about November 21, 2008, when he was working on a construction project at a site owned by Sandaro Realty, Inc. (hereinafter Sandaro). McDonnell alleged that, on that date, a plank on the scaffold on which he was standing broke and caused him to fall a distance of approximately six feet to the ground. At the time, McDonnell was employed as a carpenter by Bay Structures, Inc. (hereinafter Bay), a subcontractor on the project engaged in dry wall and carpentry work. E.W. Howell Co., LLC (hereinafter Howell), was the general contractor for the project. The scaffold was owned by J & R Brick Masonry, Inc. (hereinafter J & R), another subcontractor on the project engaged in masonry work.

The parties dispute which J & R scaffold McDonnell fell from, and also whether Howell had secured permission from J & R for McDonnell to use the scaffold involved. At his deposition, McDonnell testified that, on the date of his accident, his supervisor, who worked for Bay, and a Howell supervisor instructed him to use the scaffold, and that, when McDonnell stepped on a plank on the scaffold, it broke and he fell approximately six feet. McDonnell also testified that he advised his supervisor that he was okay after the accident and declined to go to the hospital. According to the deposition testimony of McDonnell and others, including a Howell employee who investigated the accident later that same day, the scaffold was disassembled almost immediately after McDonnell's fall and the broken plank was discarded, although McDonnell's supervisor took a photograph of the broken plank first.

More than two years after McDonnell's fall, in June 2011, the plaintiffs commenced this action against Sandaro and Howell, seeking damages for, inter alia, personal injuries arising out of the fall from the scaffold. The plaintiffs asserted causes of action alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. Howell then commenced a third-party action against Bay and J & R (hereinafter together the third-party defendants), and Sandaro subsequently asserted cross claims and counterclaims against the third-party defendants and Howell. The third-party defendants each asserted counterclaims and cross claims for, inter alia, contractual and common-law indemnification and contribution against each other, Howell, and Sandaro.

In an order entered May 26, 2015, the Supreme Court determined the parties' respective motions and cross motion for, inter alia, summary judgment, made after discovery was complete. J & R appeals, and the plaintiffs, Sandaro, Howell, and Bay cross-appeal.

The Plaintiffs' Claims

The Supreme Court should have granted that branch of the plaintiffs' motion which was 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 Sandaro. The plaintiffs established their prima facie entitlement to judgment as a matter of law...