Sullivan v. N.Y. Athletic Club of N.Y.

• Decision Date: 20 June 2018
• Docket Number: Index No. 702984/12,2016–07473
• Citation: Sullivan v. N.Y. Athletic Club of N.Y., 162 A.D.3d 955, 80 N.Y.S.3d 93 (N.Y. App. Div. 2018)
• Parties: John SULLIVAN, respondent-appellant, v. NEW YORK ATHLETIC CLUB of City of New York, defendant, Talisen Construction Corporation, appellant-respondent. (and a third-party action)
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 955

80 N.Y.S.3d 93

John SULLIVAN, respondent-appellant,

v.NEW YORK ATHLETIC CLUB of City of New York, defendant,Talisen Construction Corporation, appellant-respondent.

(and a third-party action)

2016–07473

Index No. 702984/12

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

Submitted—March 9, 2018

June 20, 2018

Baker Greenspan & Bernstein, Bellmore, N.Y. (Robert L. Bernstein, Jr., of counsel), for appellant-respondent.

Weiss & Rosenbloom, P.C., New York, N.Y. (Barry D. Weiss of counsel), for respondent-appellant.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Talisen Construction Corporation appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered June 23, 2016. The order, insofar as appealed from, denied those branches of the motion of the defendant Talisen Construction Corporation which were for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against it and the cross claims for contractual indemnification and contribution asserted against it by the defendant New York Athletic Club of City of New York. The order, insofar as cross-appealed from, granted that branch of the motion of the defendant Talisen Construction Corporation which was for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, and those branches of the motion of the defendant Talisen Construction Corporation which were for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against it and the cross claims for contractual indemnification and contribution asserted against it by the defendant New York Athletic Club of City of New York are granted; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant Talisen Construction Corporation, payable by the plaintiff.

The defendant New York Athletic Club of City of New York (hereinafter NYAC) hired the defendant Talisen Construction Corporation (hereinafter Talisen) as a general contractor to renovate a bathroom on NYAC's premises. As part of the contract, Talisen agreed to indemnify NYAC "[t]o the fullest extent permitted by law," including the payment of legal fees and costs arising from defending an action in connection with the work to be performed. In turn, Talisen hired the plaintiff's employer, Premier Woodcraft, Ltd. (hereinafter Premier), as a subcontractor for the bathroom renovation.

As part of their work in renovating the bathroom, the plaintiff and a coworker were carrying a heavy beam on their shoulders from their truck located outside of the premises to the bathroom. The beam had to be brought into the building through the front entrance and then down a set of steps. The plaintiff felt his "knee go forward" as he neared the bottom of the steps with the beam on his shoulder, and he subsequently dropped the beam and fell to the floor. The plaintiff sustained a left knee quadriceps tendon rupture, which his medical expert opined was caused by "the excessive load of the steel beam he was carrying on his body coupled with the activity of descending stairs."

The plaintiff commenced this action against Talisen and NYAC, alleging violations of Labor Law §§ 200, 240(1) and 241(6), and common-law negligence. NYAC, inter alia, cross-claimed against Talisen for contractual indemnification and contribution.

Talisen moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The Supreme Court, inter alia, granted those branches of Talisen's motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it. The Supreme Court, however, denied those branches of Talisen's motion which were for summary judgment dismissing the Labor Law § 240(1) cause of action and NYAC's cross claims for contractual indemnification and contribution. Talisen appeals and the plaintiff cross-appeals.

"The extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do ‘not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ " ( Nieves v. Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, 915–916, 690 N.Y.S.2d 852, 712 N.E.2d 1219, quoting Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [emphasis omitted] ). Rather, the statute was designed to prevent accidents in which a protective device " ‘proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person’ " ( Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 604, 895 N.Y.S.2d 279, 922 N.E.2d 865, quoting Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [emphasis omitted] ).

Here, Talisen established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff's injury was not caused by an elevation-related hazard encompassed by Labor Law § 240(1) (see Cardenas v. BBM Constr. Corp., 133 A.D.3d 626, 627–628, 20 N.Y.S.3d 103 ; Carrera v. Westchester Triangle Hous. Dev. Fund Corp., 116 A.D.3d 585, 984 N.Y.S.2d 339 ; Carroll v. Timko Contr. Corp., 264 A.D.2d 706, 694 N.Y.S.2d 744 ; cf. Dirschneider v. Rolex Realty Co. LLC, 157 A.D.3d 538, 539–540, 69 N.Y.S.3d 40 [injury arose when worker lost control of object's descent] ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether his injury arose from an elevation-related risk contemplated by the statute rather than from the usual and ordinary dangers of the construction site (see Cardenas v. BBM Constr. Corp., 133 A.D.3d 626, 20 N.Y.S.3d 103 ; Rau v. Bagels N Brunch, Inc., 57 A.D.3d 866, 867, 870 N.Y.S.2d 111 ). The mere fact that the plaintiff was injured while lifting a heavy object does not give rise to liability pursuant to Labor Law § 240(1) (see Cardenas v. BBM Constr. Corp., 133 A.D.3d 626, 20 N.Y.S.3d 103 ; Carroll v. Timko Contr. Corp., 264 A.D.2d at 706, 694 N.Y.S.2d 744 ; cf. Dirschneider v. Rolex Realty Co. LLC, 157 A.D.3d 538, 69 N.Y.S.3d 40 ). Likewise, no liability attaches under Labor Law § 240(1) with regard to the plaintiff's act of descending a permanent stairway (see Gallagher v. Andron Constr. Corp., 21 A.D.3d 988, 989, 801 N.Y.S.2d 373 ; Parsuram v. I.T.C. Bargain Stores, Inc., 16 A.D.3d 471, 472, 791 N.Y.S.2d 616 ). In opposition, the plaintiff failed to raise a triable issue of fact. Therefore, the Supreme Court should have granted that branch of Talisen's motion which was for summary...