Smith v. Nestle Purina Petcare Co.

• Decision Date: 26 April 2013
• Citation: 966 N.Y.S.2d 292,105 A.D.3d 1384,2013 N.Y. Slip Op. 02892
• Court: New York Supreme Court — Appellate Division
• Parties: Paul J. SMITH, Plaintiff–Respondent, v. NESTLE PURINA PETCARE COMPANY, Defendant–Appellant. Nestle Purina Petcare Company, Third–Party Plaintiff–Appellant–Respondent, v. E.E. Austin & Son, Inc., Third–Party Defendant–Respondent–Appellant.

105 A.D.3d 1384

966 N.Y.S.2d 292

2013 N.Y. Slip Op. 02892

Paul J. SMITH, Plaintiff–Respondent,

v.NESTLE PURINA PETCARE COMPANY, Defendant–Appellant.

Nestle Purina Petcare Company, Third–Party Plaintiff–Appellant–Respondent,

v.E.E. Austin & Son, Inc., Third–Party Defendant–Respondent–Appellant.

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

April 26, 2013.

Goldberg Segalla LLP, Buffalo (Arlow M. Linton of Counsel), for Defendant–Appellant and Third–Party Plaintiff–Appellant–Respondent.

Law Offices of Laurie G. Ogden, Buffalo (Jerry Marti of Counsel), for Third–Party Defendant–Respondent–Appellant.

Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff–Respondent.

PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.

MEMORANDUM:

Plaintiff commenced this Labor Law and common-law negligence action against defendant-third-party plaintiff, Nestle Purina Petcare Company (Nestle), seeking damages for injuries he sustained when he “slip[ped] and/or trip[ped]” and fell while working on a construction project inside a grain silo owned by Nestle. Nestle subsequently commenced a third-party action against plaintiff's employer, third-party defendant, E.E. Austin & Son, Inc. (Austin), which had entered into a written contract with Nestle to modify the interior of the silo. Immediately before the accident, plaintiff was standing on a ladder while vacuuming grain dust off the top of a hose rack. Plaintiff stepped off the ladder and onto accumulated grain dust and a hose that was hanging off the rack, whereupon he twisted his ankle and fell. Nestle moved for summary judgment seeking contractual indemnification in its third-party action and for summary judgment dismissing plaintiff's complaint. Austin cross-moved for summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims and for summary judgment determining that Nestle is not entitled to contractual indemnification from Austin. Nestle appeals and Austin cross-appeals from an order denying their respective motions and cross motion.

We conclude that Supreme Court erred in denying those parts of Nestle's motion and Austin's cross motion for summary judgment dismissing plaintiff's Labor Law § 240(1) cause of action inasmuch as “plaintiff's injury resulted from a separate hazard wholly unrelated to the danger that brought about the need for the ladder in the first instance—an unnoticed or concealed object on the floor” (Nieves v. Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, 916, 690 N.Y.S.2d 852, 712 N.E.2d 1219;see Cohen v. Memorial Sloan–Kettering Cancer Ctr., 11 N.Y.3d 823, 825, 868 N.Y.S.2d 578, 897 N.E.2d 1059;Meslin v. New York Post, 30 A.D.3d 309, 310, 817 N.Y.S.2d 279). We therefore modify the order accordingly.

We reject the further contentions of Nestle and Austin that the court erred in denying those parts of their motion and cross motion for summary judgment with respect to plaintiff's Labor Law § 241(6) cause of action insofar as it is based upon an alleged violation of 12 NYCRR 23–1.7(e)(2). That regulation provides in relevant part that “[t]he parts of floors ... where persons work or pass shall be kept free ... from scattered tools and materials ... insofar as may be consistent with the work being performed.” Although that regulation “is applicable because the object[, i.e., the hose,] over which plaintiff tripped was not an integral part of the work he was performing” ( Arenas v. Bon–Ton Dept. Stores, Inc., 35 A.D.3d 1205, 1206, 829 N.Y.S.2d 297), on this record there is an issue of fact whether the hose constituted a scattered tool that was a tripping hazard within the meaning of 12 NYCRR 23–1.7(e)(2) ( see Torres v. Forest City Ratner Cos., LLC, 89 A.D.3d 928, 929, 933 N.Y.S.2d 71;Cafarella v. Harrison Radiator Div. of Gen. Motors, 237 A.D.2d 936, 938, 654 N.Y.S.2d 910;see generally Arenas, 35 A.D.3d at 1206, 829 N.Y.S.2d 297). Contrary to the contentions of Nestle and Austin, plaintiff may properly rely on that regulation despite the fact that it is raised for the first time in opposition to the motion and cross motion and is not set forth in the complaint or bill of particulars inasmuch as plaintiff's reliance thereon “raises no new factual allegations or theories of liability and results in no discernible prejudice to [Nestle and Austin]” ( Landon v. Austin, 88 A.D.3d 1127, 1129–1130, 931 N.Y.S.2d 424;see Sanders v. St. Vincent Hosp., 95 A.D.3d 1195, 1196, 945 N.Y.S.2d 343;Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 A.D.2d 231, 233, 705 N.Y.S.2d 577).

We conclude, however, that the court erred in denying those parts of Nestle's motion and Austin's cross motion for summary judgment dismissing the Labor Law § 241(6) cause of action to the extent that it is based upon an alleged violation of 12 NYCRR 23–1.7(d), and we therefore further modify the order accordingly. Pursuant to that regulation, “[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.” That regulation is not applicable to the facts of this case because “the [grain dust] on which plaintiff slipped was the very condition he was charged with removing” and thus was an integral part of the task plaintiff was performing ( Gaisor v. Gregory Madison Ave., LLC, 13 A.D.3d 58, 60, 786 N.Y.S.2d 158;see Galazka v. WFP One Liberty Plaza Co., LLC, 55 A.D.3d 789, 789, 865 N.Y.S.2d 689,lv. denied12 N.Y.3d 709, 2009 WL 1259016;Basile v. ICF Kaiser Engrs. Corp., 227 A.D.2d 959, 959, 643 N.Y.S.2d 854). Furthermore, we note that plaintiff on appeal has abandoned any reliance on the remaining regulations set forth in his bill of particulars with respect to the basis for the alleged violation of Labor Law § 241(6), and we thus additionally modify the order by granting the motion and cross motion for summary judgment dismissing the Labor Law § 241(6) claim to that extent as well ( see Roosa v. Cornell Real Prop. Servicing, Inc., 38 A.D.3d 1352, 1354, 831 N.Y.S.2d 784;Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745).

Contrary to Nestle's contention, the court properly denied that part of its motion for summary judgment dismissing plaintiff's Labor Law § 200 claim and common-law negligence cause of action. “It is settled law that where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law” ( Lombardi v. Stout, 80 N.Y.2d 290, 295, 590 N.Y.S.2d 55, 604 N.E.2d 117). Nevertheless, plaintiff “ ‘need not establish that [Nestle] had supervisory control over the work being performed in the event that the accident was caused by a defective condition on the premises and [Nestle] had actual [or] constructive notice of such defect’ ” ( Bannister v. LPCiminelli, Inc., 93...