Wolf v. Ledcor Constr. Inc.

• Decision Date: 22 August 2019
• Docket Number: CA 18–02269,491
• Citation: 175 A.D.3d 927,107 N.Y.S.3d 558
• Parties: Christopher WOLF, Plaintiff–Respondent, v. LEDCOR CONSTRUCTION INC., Costco Wholesale Corp., Cameron Group, LLC, and Hinsdale Road Group, LLC, Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 927

107 N.Y.S.3d 558

Christopher WOLF, Plaintiff–Respondent,

v.LEDCOR CONSTRUCTION INC., Costco Wholesale Corp., Cameron Group, LLC, and Hinsdale Road Group, LLC, Defendants–Appellants.

491

CA 18–02269

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

August 22, 2019

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is modified on the law by denying that part of the cross motion of defendants Cameron Group, LLC and Hinsdale Road Group, LLC seeking summary judgment on their cross claim for contractual indemnification insofar as that cross claim seeks contractual indemnification of defendant Cameron Group, LLC by defendant Costco Wholesale Corp., and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries that he sustained on a construction site when the scaffold on which he was standing tipped over. In their amended answer, defendants Cameron Group, LLC (Cameron) and Hinsdale Road Group, LLC (Hinsdale) asserted a cross claim for contractual indemnification against defendants Ledcor Construction Inc. (Ledcor) and Costco Wholesale Corp. (Costco). Plaintiff moved for partial summary judgment on liability with respect to his Labor Law § 240(1) claim, Ledcor and Costco cross-moved for, inter alia, summary judgment dismissing the complaint against them, and Cameron and Hinsdale cross-moved for, inter alia, summary judgment dismissing the complaint against them and summary judgment on their cross claim for contractual indemnification against Ledcor and Costco. Now, Ledcor and Costco and Cameron and Hinsdale appeal from an order that, inter alia, granted plaintiff's motion, denied those parts of the cross motions seeking summary judgment dismissing the Labor Law § 240(1) claim against them, denied that part of the cross motion of Ledcor and Costco seeking summary judgment dismissing the Labor Law § 200 claim and the common-law negligence cause of action against them, and granted that part of the cross motion of Cameron and Hinsdale seeking summary judgment on their cross claim for contractual indemnification insofar as they sought contractual indemnification from Costco.

Preliminarily, Ledcor, Costco and Hinsdale do not dispute that they were either owners or contractors who may be held liable pursuant to Labor Law § 240(1). The contention of Cameron and Hinsdale that Cameron should be dismissed from the action because it was the site developer and is therefore not a statutory defendant is raised for the first time on appeal, and thus that contention is not properly before this Court (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ). We note that Cameron and Hinsdale do not contend in the alternative that plaintiff's motion for partial summary judgment should be denied with respect to Cameron.

We reject the contentions of defendants that Supreme Court erred in granting plaintiff's motion for partial summary judgment on the issue of liability with respect to his Labor Law § 240(1) claim and denying defendants' cross motions insofar as they sought dismissal of that claim. "A plaintiff is entitled to summary judgment under Labor Law § 240(1) by establishing that he or she was subject to an elevation-related risk, and [that] the failure to provide any safety devices to protect the worker from such a risk [was] a proximate cause of his or her injuries" ( Wolfe v. Wayne–Dalton Corp., 133 A.D.3d 1281, 1283, 20 N.Y.S.3d 777 [4th Dept. 2015] [internal quotation marks omitted]; see Barreto v. Metropolitan Transp. Auth., 25 N.Y.3d 426, 433, 13 N.Y.S.3d 305, 34 N.E.3d 815 [2015], rearg. denied 25 N.Y.3d 1211, 16 N.Y.S.3d 515, 37 N.E.3d 1159 [2015] ). Here, plaintiff met his initial burden of establishing a statutory violation by submitting evidence that he was standing on a scaffold hanging sheetrock when a wheel on the scaffold fell into a floor drain and caused the scaffold to tip over. The wheel had been placed on top of a plastic curing blanket that had been applied over the newly installed concrete floor and was stretched over the drain hole, and the accident occurred when the wheel ripped through the plastic curing blanket and fell into the hole. Various witnesses provided deposition testimony that, during the installation of a concrete floor, a floor drain should have a temporary cover that would prevent anything from falling into the drain. At the time of plaintiff's accident, however, the floor drain was covered with a permanent half grate, which had a hole into which the scaffold wheel fell.

Although it is well settled that " ‘the extraordinary protections of [ Labor Law § 240(1) ] ... apply only to a narrow class of dangers’ " ( Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 96–97, 7 N.Y.S.3d 263, 30 N.E.3d 154 [2015], rearg. denied 25 N.Y.3d 1195, 16 N.Y.S.3d 54, 37 N.E.3d 113 [2015], quoting Melber v. 6333 Main St., 91 N.Y.2d 759, 762, 676 N.Y.S.2d 104, 698 N.E.2d 933 [1998] ), and " ‘do not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ " ( Nicometi, 25 N.Y.3d at 97, 7 N.Y.S.3d 263, 30 N.E.3d 154, 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 [1993] ), we reject defendants' contentions that plaintiff's accident was not caused by an elevation-related risk contemplated by section 240(1). "[T]he relevant and proper inquiry is whether the hazard plaintiff encountered ... was a separate hazard wholly unrelated to the hazard which brought about [the] need [for a safety device] in the first instance" ( Nicometi, 25 N.Y.3d at 98, 7 N.Y.S.3d 263, 30 N.E.3d 154 [internal quotation marks omitted] ). Here, it is undisputed that the scaffold on which plaintiff was standing tipped over because one of its wheels was placed over an open floor drain hole. The fact that the scaffold tipped and plaintiff fell to the ground "demonstrates that it was not so placed ... as to give proper protection to [him]" ( Alati v. Divin Bldrs., Inc., 137 A.D.3d 1577, 1578, 27 N.Y.S.3d 747 [4th Dept. 2016] [internal quotation marks omitted]; cf. Nicometi, 25 N.Y.3d at 93–94, 7 N.Y.S.3d 263, 30 N.E.3d 154 ). We therefore conclude that plaintiff's accident was caused by an elevation-related risk as contemplated in section 240(1) (see Thome v. Benchmark Main Tr. Assoc., LLC, 86 A.D.3d 938, 939, 927 N.Y.S.2d 260 [4th Dept. 2011] ; Gallagher v. Bechtel Corp., 245 A.D.2d 36, 36, 664 N.Y.S.2d 781 [1st Dept. 1997] ).

We reject defendants' contentions that the sole proximate cause of the accident was plaintiff's failure to observe the drain hole and position the scaffold in such a manner to avoid it. "[T]here can be no liability under [ Labor Law § ] 240(1) when there is no violation and the worker's actions ... are the ‘sole proximate cause’ of the accident" ( Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ), and "[a] defendant is entitled to summary judgment dismissing a Labor Law § 240(1) cause of action or claim by establishing that ... the plaintiff's conduct was the sole proximate cause of the accident" ( Bruce v. Actus Lend Lease, 101 A.D.3d 1701, 1702, 959 N.Y.S.2d 574 [4th Dept. 2012] ). Plaintiff submitted the testimony of four witnesses, including the project superintendent of the subcontractor that installed the drain and the project manager and superintendent of the subcontractor that installed the concrete floor and curing blanket. Each testified that a temporary cover should be placed over an open drain during the installation of the concrete floor, and therefore plaintiff established that a statutory violation, i.e., the placement of the scaffold over the improperly covered drain hole, was a proximate cause of the accident (see generally Whalen v. Exxonmobil Oil Corp., 50 A.D.3d 1553, 1554, 856 N.Y.S.2d 789 [4th Dept. 2008] ). Thus, even assuming, arguendo, that plaintiff was negligent in failing to observe the drain hole and positioning the scaffold over it, we conclude that his "actions ... render him [merely] contributorily negligent, a defense unavailable under [ Labor Law § 240(1) ]" ( Calderon v. Walgreen Co., 72 A.D.3d 1532, 1533, 900 N.Y.S.2d 533 [4th Dept. 2010], appeal dismissed 15 N.Y.3d 900, 912 N.Y.S.2d 568, 938 N.E.2d 1002 [2010] [internal quotation marks omitted]; see Barreto, 25 N.Y.3d at 433, 13 N.Y.S.3d 305, 34 N.E.3d 815 ; Blake, 1 N.Y.3d at 289, 771 N.Y.S.2d 484, 803 N.E.2d 757 ). "Because plaintiff established that a statutory violation was a proximate cause of [his] injury, [he] ‘cannot be solely to blame for it’ " ( Woods v. Design Ctr., LLC, 42 A.D.3d 876, 877, 839 N.Y.S.2d 880 [4th Dept. 2007], quoting Blake, 1 N.Y.3d at 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 ).

Ledcor and Costco contend that the court erred in denying that part of their cross motion seeking to dismiss the Labor Law § 200 claim and the common-law negligence cause of action because they did not direct or control the manner or method of plaintiff's work. We reject that contention. Cases involving section 200 and common-law negligence "fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" ( Mayer v. Conrad, 122 A.D.3d 1366, 1367, 997 N.Y.S.2d 869 [4th Dept. 2014] [internal quotation marks omitted] ). Here, it is undisputed that neither the manner nor the method of plaintiff's work created the open drain in the floor that caused plaintiff's scaffold to tip over. Thus, this matter falls into the "dangerous or defective premises conditions" category of cases ( id. ).

"Where[, as here,] a premises condition is at issue, property owners [and general contractors] may be held liable for a violation of Labor Law § 200 [and under a theory of common-law...