Temperino v. DRA, Inc.

• Decision Date: 13 July 2010
• Citation: Temperino v. DRA, Inc., 904 N.Y.S.2d 767, 75 A.D.3d 543 (N.Y. App. Div. 2010)
• Court: New York Supreme Court — Appellate Division
• Parties: Dario TEMPERINO, plaintiff-respondent, v. DRA, INC., defendant third-party plaintiff-respondent, Rockefeller University, defendant third-party plaintiff/second third-party plaintiff-respondent, M & J Mechanical Corp., defendant third-party defendant-respondent, et al., defendant; Gloron Agency, Inc., third-party defendant/second third-party defendant-appellant, Rutgers Casualty Insurance Co., third-party defendant-respondent, et al., second third-party defendants.

904 N.Y.S.2d 767

75 A.D.3d 543

Dario TEMPERINO, plaintiff-respondent,

v. DRA, INC., defendant third-party plaintiff-respondent,Rockefeller University, defendant third-party plaintiff/second third-party plaintiff-respondent,M & J Mechanical Corp., defendant third-party defendant-respondent, et al., defendant;Gloron Agency, Inc., third-party defendant/second third-party defendant-appellant,Rutgers Casualty Insurance Co., third-party defendant-respondent, et al., second third-party defendants.

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

July 13, 2010.

Winget, Spadafora & Schwartzberg, LLP, New York, N.Y. (Kenneth A. McLellan and Christina M. Rieker of counsel), for third-party defendant/second third-party defendant-appellant.

Talisman & DeLorenz, P.C., Paul F. McAloon, P.C., New York, N.Y., for plaintiff-respondent.

Conway Farrell Curtin & Kelly, P.C., New York, N.Y. (Jonathan T. Uejio of counsel), for defendant third-party plaintiff/second third-party plaintiff-respondent.

Bivona & Cohen, P.C., New York, N.Y. (Elio Di Berardino and Anthony J. McNulty of counsel), for third-party defendant-respondent.

Barry, McTiernan & Moore, New York, N.Y. (Laurel A. Wedinger of counsel), for defendant Olympic Plumbing & Heating Services, Inc.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, DANIEL D. ANGIOLILLO, and PLUMMER E. LOTT, JJ.

In an action to recover damages for personal injuries, the third-party defendant/second third-party defendant, Gloron Agency, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Ambrosio, J.), dated December 1, 2008, as denied its cross motion, in effect, for summary judgment dismissing the complaint insofar as asserted against the defendant third-party plaintiff, DRA, Inc., dismissing all cross claims of the defendant third-party plaintiff/second third-party plaintiff, Rockefeller University, asserted against the defendant third-party plaintiff, DRA, Inc., and for summary judgment on the third-party claim of the defendant third-party plaintiff, DRA, Inc., against the third-party defendant Rutgers Casualty Insurance Co.

[904 N.Y.S.2d 769, 75 A.D.3d 544]

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the cross motion of the third-party defendant/second third-party defendant, Gloron Agency, Inc., which were, in effect, for summary judgment dismissing the complaint insofar as asserted against the defendant third-party plaintiff, DRA, Inc., and dismissing the cross claim of the defendant third-party plaintiff/second third-party plaintiff, Rockefeller University, asserted against the defendant third-party plaintiff, DRA, Inc., and substituting therefor provisions granting those branches of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The defendant third-party plaintiff, DRA, Inc. (hereinafter DRA), contracted with the defendant third-party plaintiff/second third-party plaintiff, Rockefeller University (hereinafter the University), to perform carpentry work as part of the University's renovation of one of its buildings. The plaintiff, an electrician, allegedly was injured when he fell from a ladder during the course of his work on the renovation project. DRA moved for summary judgment dismissing the complaint insofar as asserted against it and all cross claims asserted against it by the University, and for summary judgment on its claim against the third-party defendant Rutgers Casualty Insurance Co. The complaint alleged claims sounding in common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The third-party defendant/second third-party defendant, Gloron Agency, Inc. (hereinafter Gloron), cross-moved, among other things, in effect, for summary judgment dismissing the complaint and all cross claims insofar as asserted against DRA, and thereupon, to dismiss the second third-party complaint insofar as asserted against it as academic. In Gloron's supporting attorney affirmation, it adopted and incorporated DRA's arguments and, in effect, sought the same relief as DRA. The Supreme Court, inter alia, denied DRA's motion and Gloron's cross motion. Gloron appeals the denial of its cross motion, essentially standing in DRA's shoes vis-à-vis the plaintiff and the University ( see CPLR 1008).

"Labor Law § 240(1) imposes a nondelegable duty upon owners, contractors, or their agents to provide proper protection to a worker performing certain types of construction work" ( Aversano v. JWH Contr., LLC, 37 A.D.3d 745, 746, 831 N.Y.S.2d 222). "A general contractor will be held liable under Labor Law § 240(1) if it was responsible for coordinating and supervising the entire construction project and was invested with a concomitant power to enforce safety standards and to hire responsible contractors"( id.). In order to hold a contractor such as DRA "absolutely liable for violations of Labor Law §§ 240 and 241, there must be a showing that [it] had the authority to supervise and control the work giving rise to these duties" ( Kehoe v. Segal, 272 A.D.2d 583, 584, 709 N.Y.S.2d 817). "The determinative factor on the issue of control is not whether a...