Mouta v. Essex Mkt. Dev. LLC

• Decision Date: 16 May 2013
• Citation: 966 N.Y.S.2d 13,106 A.D.3d 549,2013 N.Y. Slip Op. 03579
• Parties: Domingos MOUTA, et al., Plaintiffs–Respondents, v. ESSEX MARKET DEVELOPMENT LLC, Defendant–Appellant–Respondent, JF Contracting Corp., Defendant–Respondent–Appellant, MSS Construction Corp., Defendant. Essex Market Development LLC, Third–Party Plaintiff–Appellant–Respondent, v. Marangos Construction Corp., Third–Party Defendant–Respondent–Appellant. JF Contracting Corp., Third–Party Plaintiff–Respondent–Appellant, v. Marangos Construction Corp., Third–Party Defendant–Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 549

966 N.Y.S.2d 13

2013 N.Y. Slip Op. 03579

Domingos MOUTA, et al., Plaintiffs–Respondents,

v.ESSEX MARKET DEVELOPMENT LLC, Defendant–Appellant–Respondent,JF Contracting Corp., Defendant–Respondent–Appellant,MSS Construction Corp., Defendant.

Essex Market Development LLC, Third–Party Plaintiff–Appellant–Respondent,

v.Marangos Construction Corp., Third–Party Defendant–Respondent–Appellant.

JF Contracting Corp., Third–Party Plaintiff–Respondent–Appellant,

v.Marangos Construction Corp., Third–Party Defendant–Respondent–Appellant.

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

May 16, 2013.

Kral, Clerkin, Redmond, Ryan, Perry & Van Etten, LLP, Melville (James V. Derenze of counsel), for appellant-respondent.

Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York (Vanessa M. Corchia of counsel), for JF Contracting Corp., respondent-appellant.

Baxter Smith & Shapiro, P.C., White Plains (Sim R. Shapiro of counsel), for Marangos Construction Corp., respondent-appellant.

Siegel & Coonerty, LLP, New York (Steven Aripotch of counsel), for respondents.

ANDRIAS, J.P., RENWICK, FREEDMAN, GISCHE, JJ.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered January 31, 2012, which granted plaintiffs' motion for summary judgment as to liability under Labor Law § 240(1), denied defendant/third-party plaintiff JF Contracting Corp.'s (JF) motion for summary judgment dismissing the complaint as against it, for summary judgment on its claims for common-law and contractual indemnification and breach of contract against third-party defendant Marangos Construction Corp. (Marganos), to strike Marangos's answer for failure to provide insurance information,and to compel defendant/ third-party plaintiff Essex Market Development LLC (Essex) to produce copies of its relevant insurance policies, and denied Essex's motion for summary judgment on its common-law and contractual indemnification claims against JF and Marangos, unanimously modified, on the law, to grant JF's motion for summary judgment dismissing as against it the Labor Law § 200 and common-law negligence claims and the Labor Law § 241(6) claims insofar as they are predicated on violations of Industrial Code (12 NYCRR) §§ 23–1.5, 23–1.8, 23–1.11, 23–1.15, 23–1.16, 23–1.17, 23–1.24, 23–5.3, 23–5.4, 23–5.5, 23–5.6, and 23–5.7, and for summary judgment on its contractual indemnification claims against Marangos, to conditionally grant its cross motion for summary judgment on its common-law indemnification claims against Marangos, and to deny Essex's motion for summary judgment on its indemnification claims against Marangos, with leave to renew, and, upon a search of the record, to grant summary judgment to Essex and defendant MSS Construction Corp. dismissing as against them the Labor Law § 241(6) claims insofar as they are predicated on the above-cited violations of the Industrial Code, and otherwise affirmed, without costs.

Plaintiff Domingos Mouta was injured when he stepped on a section of plywood platform that, unbeknownst to him, was being dismantled, and he fell from the fourth floor to the second. There is no question that plaintiff's was a “gravity-related ... fall[ ] from a height,” and that plaintiff was provided with no safety devices, such as a harness, to prevent the fall. Marangos's conclusory claims that safety devices were available are not sufficient to raise an issue of fact. Thus, defendants are liable for Mouta's injuries pursuant to Labor Law § 240(1) ( see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ).

To the extent the Labor Law § 241(6) claim is predicated on Industrial Code (12 NYCRR) §§ 23–1.5 (general responsibilities of employers), 23–1.8 (personal protective equipment), 23–1.11 (lumber and nail fastenings), 23–1.15 (construction of safety railings), 23–1.16 (safety belts, harnesses, tail lines and lifelines), 23–1.17 (life nets), 23–1.24 (work on roofs), and 23–5.3, 5.4, 5.5, 5.6, and 5.7 (various types of scaffolds), it must be dismissed as against all defendants because these provisions either are too general to support a § 241(6) claim or are simply inapplicable to the facts of this case.

JF demonstrated that it did not supervise and control plaintiff's work or the area of the work site in which plaintiff's accident occurred, and therefore cannot be held liable for plaintiff's injuries under Labor Law § 200 or common-law negligence principles (Torkel v. NYU Hosps. Ctr., 63 A.D.3d 587, 883 N.Y.S.2d 8 [1st Dept. 2009] ). The record demonstrates that Marangos, plaintiff's employer, which pursuant to its contract with JF was responsible for site safety, was in charge of all aspects of the work at issue, including safety.

The contract between JF and Marangos obligated Marangos to indemnify JF against losses...