Rosa v. Philip Morris Management Corporation

• Decision Date: 11 March 2003
• Citation: 757 N.Y.S.2d 527,303 A.D.2d 190
• Parties: ONRIS DE LA ROSA, Respondent,<BR>v.<BR>PHILIP MORRIS MANAGEMENT CORPORATION, Respondent, and<BR>SHORENSTEIN COMPANY EAST, L.P., Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

303 A.D.2d 190

757 N.Y.S.2d 527

ONRIS DE LA ROSA, Respondent,

v.PHILIP MORRIS MANAGEMENT CORPORATION, Respondent, andSHORENSTEIN COMPANY EAST, L.P., Appellant, et al., Defendant.

Decided March 11, 2003.

Concur — Mazzarelli, J.P., Andrias, Buckley and Marlow, JJ.

Defendant Philip Morris Management Corporation (Philip Morris) owns certain premises located at 120 Park Avenue in Manhattan. Philip Morris contracted with defendant The Shorenstein Company East, L.P. (Shorenstein) to manage day-to-day operations and maintain the premises, including hiring outside contractors, as needed, to perform emergency repairs. On February 24, 1998, Philip Morris and Shorenstein learned that the metal rolling gate to the building's 41st Street loading dock was struck by a truck and disabled. Shorenstein, pursuant to its contractual responsibilities, contacted defendant Professional Rolling Door Service (Professional) to perform the emergency repair. Professional had no one available and consequently subcontracted Global Overhead Doors (Global), which sent plaintiff and his boss to the building, equipping them with a ladder and tools.

In order to repair the gate, plaintiff used an extension ladder which was about 15 feet high. Plaintiff claims that due to the slope of the ground, the ladder would not stand level. Plaintiff alleges that his boss placed the left leg of the ladder on a piece of wood in order to keep the ladder level on the ground. Plaintiff climbed the ladder and began using a crowbar on the gate. However, the piece of wood under the leg moved, causing the ladder to shift. Plaintiff fell off the ladder, sustaining injury.

Plaintiff commenced this action against defendants alleging common-law negligence^[*] and violations of Labor Law § 240 (1) and § 241 (6). Defendants answered asserting cross claims against each other for contribution and indemnification. After joinder of issue, Shorenstein moved for summary judgment on its cross claim against Philip Morris for a defense and for contractual indemnification and to dismiss plaintiff's common-law negligence claim on the ground that it did not supervise or control plaintiff's work.

The Supreme Court denied Shorenstein's motion. Specifically, the court found that "pursuant to the admissible evidence adduced, several unresolved issues of fact exist concerning, inter alia, possible supervisory authority, and consequent negligence by defendants [Philip Morris] and/or [Shorenstein], both of whom concededly had personnel on site who exercised managerial authority over the location in question." As to contractual indemnity, the court opined that the meaning and interpretation of the "reciprocal indemnification obligation" language in the managerial contract between Philip Morris and Shorenstein was "unresolved."

On appeal, Shorenstein argues that the court erred in failing to dismiss plaintiff's common-law negligence claim and in failing to grant judgment on its contractual indemnity cross claim against Philip Morris. Labor Law § 200 applies to an owner or managing agent who exercises control or supervision over the work performed at the accident site (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]; Blessinger v Estee Lauder Cos., 271 AD2d 343 [2000]). A general duty to supervise the work and ensure compliance with safety regulations is insufficient to constitute the requisite supervision and control under Labor Law § 200 (see Buccini v 1568 Broadway Assoc., 250 AD2d 466, 469 [1998]). Moreover, a duty to provide a safe workplace is not breached where plaintiff's alleged injuries arose out of an alleged defect in his employer's tools or methods (see Cruz v Toscano, 269 AD2d 122, 123 [2000]).

Here, the record demonstrates that Shorenstein had, at most, a general supervisory authority over Global's performance of the work and had no authority over the manner and method in which plaintiff performed his work....