Uhl v. D'Onofrio Gen. Contractors, Corp.

• Decision Date: 25 August 2021
• Docket Number: 2018–14102,Index No. 16726/12
• Parties: Timothy UHL, et al., plaintiffs-respondents, v. D'ONOFRIO GENERAL CONTRACTORS, CORP., defendant third-party plaintiff-appellant-respondent, STV Construction, Inc., et al., defendants-respondents, et al., defendants; Bayer MaterialScience, LLC, third-party defendant-respondent-appellant.
• Court: New York Supreme Court — Appellate Division

197 A.D.3d 770

153 N.Y.S.3d 168

Timothy UHL, et al., plaintiffs-respondents,

v.D'ONOFRIO GENERAL CONTRACTORS, CORP., defendant third-party plaintiff-appellant-respondent,

STV Construction, Inc., et al., defendants-respondents, et al., defendants;

Bayer MaterialScience, LLC, third-party defendant-respondent-appellant.

2018–14102

Index No. 16726/12

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

Argued—June 3, 2021

August 25, 2021

Cullen and Dykman, LLP, New York, N.Y. (Adrienne Yaron and Olivia M. Gross of counsel), for defendant third-party plaintiff-appellant-respondent.

Reed Smith, LLP, New York, N.Y. (Oliver Beiersdorf of counsel), for third-party defendant-respondent-appellant.

Robert A. Cardali & Associates, LLP, New York, N.Y. (Martin Grossman of counsel), for plaintiffs-respondents.

Law Office of Fern Flomenhaft, PLLC, New York, NY, for defendants-respondents.

REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals, and the third-party defendant cross-appeals, from an order of the Supreme Court, Kings County (Johnny Lee Baynes, J.), dated October 4, 2018. The order, insofar as appealed from, denied those branches of the defendant third-party plaintiff's motion which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against it, and granted, without prejudice, the third-party defendant's motion for summary judgment dismissing the third-party complaint. The order, insofar as cross-appealed from, granted, without prejudice, the third-party defendant's motion for summary judgment dismissing the third-party complaint.

ORDERED that the cross appeal is dismissed, as the third-party defendant is not aggrieved by the portion of the order cross-appealed from (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ; see also D.R. v. Kazachok, 155 A.D.3d 657, 657–658, 63 N.Y.S.3d 95 ); and it is further,

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendant third-party plaintiff's motion which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against it, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the appellant, payable by the plaintiffs-respondents and the defendants-respondents appearing separately and filing separate briefs.

On October 11, 2011, the plaintiff Timothy Uhl (hereinafter the injured plaintiff), an elevator inspector employed by the New York City Housing Authority, allegedly was injured when he fell from one end of a catwalk connecting the roofs of two buildings in a housing development in Brooklyn which was undergoing roof work. The injured plaintiff allegedly was about to descend some stairs from the catwalk to a roof when he touched a metal railing, felt a "shock," and then stepped down and fell where a portion of the stairs was missing.

The injured plaintiff, and his wife suing derivatively, commenced this action to recover damages for personal injuries against, among others, Pro–Metal Construction, Inc. (hereinafter Pro–Metal), the general contractor for the subject roof project, STV Construction, Inc. (hereinafter STV), the construction manager for the project, and D'Onofrio General Contractors, Corp. (hereinafter D'Onofrio), a subcontractor which contracted with Pro–Metal to perform certain work on the project, including the installation of "spray foam" that allegedly resulted in the creation of static electricity. The plaintiffs, inter alia, asserted causes of action alleging a violation of Labor Law § 200 and common-law negligence. D'Onofrio commenced a third-party action against Bayer MaterialScience, LLC (hereinafter Bayer), the manufacturer of the spray foam used by D'Onofrio, among other things, for indemnification. Thereafter, D'Onofrio moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and Bayer moved for summary judgment dismissing the third-party complaint. In an order dated October 4, 2018, the Supreme Court, inter alia, (1) denied those branches of D'Onofrio’s motion which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against it, and (2) granted, without prejudice, Bayer's motion for summary judgment dismissing the third-party complaint. D'Onofrio appeals, and Bayer cross-appeals.

Labor Law § 200 is a codification of the common-law duty of owners, contractors, and their agents to provide workers with a safe place to work (see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 ; Doto v. Astoria Energy II, LLC, 129 A.D.3d 660, 663, 11 N.Y.S.3d 201 ; Annicaro v. Corporate Suites, Inc., 98 A.D.3d 542, 544, 949 N.Y.S.2d 717 ). "Where, as here, the plaintiff contends that his or her injuries arose not from the manner in which the work was performed, but rather from an allegedly dangerous condition at the work site, liability under Labor Law § 200 and common-law negligence may be imposed upon a subcontractor where it had control over the work site and either created the allegedly dangerous condition or had actual or constructive notice of it" ( Vita v. New York Law Sch., 163 A.D.3d 605, 607, 80 N.Y.S.3d 387 ; see Russin v. Louis N. Picciano...