Motion Date: February 8, Third-Party Plaintiff. Third-Party Defendant. Present: Justice

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1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU Present: HON. ZELDA JONAS Justice ESTATE OF JOSE MARTINEZ, by MICHELLE LIPPA-GARTNER, as Public Administrator TRIAL/IAS PART Plaintiff, Index No /03 - against - Sequence No. 2 & 3 Motion Date: February 8, 2006 HOLLYWOOD ATRIUM GYM and 235 MILL STREET, INC., Defendants. HOLLYWOOD ATRIUM, INC. d/b/a HOLLYWOOD ATRIUM CLUB, Third-Party Plaintiff - against - DELCA AIR CONDITIONING & HEATING CORP., Third-Party Defendant. "-- Thl followiiigpapefsfeadoii this motion:. Notice of Motion. Notice of Cross-Motion Affirmation. Affirmation in Opposition and Reply Reply Affirmation... Reply Affirmation....

2 This motion by defendants, Hollywood Atrum Gym and 235 Mil Street, Inc., for an order pursuant to CPLR 3212 granting them summar judgment dismissing the complaint and any and all cross-claims and counterclaims against them or, in the part defendant alternative, a conditional order of indemnity over and against third- Delca Air Conditioning and Heating Corp. (" Delca ), is granted to the extent provided herein. This cross-motion by plaintiff for an order pursuant to CPLR 3212 granting him partial summary judgment against defendants is denied. In this action, the plaintiff Public Administrator seeks to recover damages for the death of Jose Martinez. On November 14, 2002, while working for his employer, thirdpart defendant Delca, Marinez was electrocuted while installing an exhaust fan in the men s locker room at the defendant, Hollywood Atrum Gym ("the Gym ). Defendant 235 Mil Street, Inc., was the owner/out-of-possession landlord of the building, and the Gym was a tenant there. The Gym hired Delca to install the exhaust fan in the men locker room; 235 Mil Street, Inc., played no part. The plaintiff Public Administrator has advanced claims on behalf of Martinez against the tenant Gym as well as 235 Mil Street pursuant to common-law negligence , and 41(()).. T ant br()ug thi! action seeking common-law indemnification from Martinez s employer, Delca. Plaintiff alleges that Martinez was allowed to work on a metal ladder on a wet floor on an electrical system that had not been turned off. Both Delca s president and

3 '" Shaun Carlson have attested that Delca supplied all of the toolsincluding the ladder-as well as all of the work instrctions. Neither the Gym nor 235 Mil Street supervised or controlled the work at all. The Gym and 235 Mil Street seek summary judgment dismissing the complaint. Plaintiff in turn seeks summary judgment with respect to liability on the claim pursuant to Labor Law 241(6). Plaintiff s claim pursuant to Labor Law 200 is dismissed as unopposed. " (A)n implicit precondition to (the duty imposed by Labor Law 200 to provide a safe place to work) ' is that the part charged with that responsibility control the activity bringing about the injury (Comes v. New York State Elec. and Gas Corp. 82 N. 2d ; quoting Russin v. Louis N. Picciano Son 54 N. Y. 2d 311, 317 (1981 n. "(W)here 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 Labor Law 200" (Comes v. New York State Elec. and Gas Corp., supra at p. 877). Defendants have established that they exercised no supervisory control whatsoever over the work being done by Delca s employees nor did they have notice of any dangerous condition which gave rise to the accident. Liability under Labor Law 200 does not lie (Loreto v. 376 St. Johns Condominium, 'inc. :B 3d 454(2d Dept.2005); citing, tombardiv. Stout 86N.V:2(f290Tf992)).' Plaintiffs claim pursuant to Labor Law 240(1) is dismissed as unopposed, too. (T)he contemplated hazards (of Labor Law 240(1)) are those related to the effects of gravity where protected devices are called for either because of the difference between

4 the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured" (Rocovich v. Consolidated Edison Co. 78 N. 2d 509 (1991)). " The mere fact that an injured worker fell from a ladder that did not slip, collapse or otherwise fail is insufficient to establish that the ladder did not provide proper protection (citation omitted)" 2d (3d Dept. 1999)). Martinez (Adams v. Owen- Corning Fiberglass Corp., 260 s coworker testified at his examination before trial that he heard a loud buzz, and then saw Martinez go limp. The ladder never moved. Since the hazard in this case, electrocution, was completely unelated to the ladder, liabilty under Labor Law ~ 240(1) does not lie (Adams v. Owens-Corning Fiberglass Corp., supra; Touhey v. Gainsborough Studios, Inc., 183 A. 2d 636 (1st Dept. 1992)). Plaintiff has a valid claim under Labor Law ~ 241(6). " Labor Law ~ 241(6) imposes a nondelegable duty on owners and contractors and their agents to provide adequate safety protection for workers and to comply with specific safety rules and regulations promulgated by the Commissioner of Labor Rice v. City of Cortlandt, 262 2d 770, 771 (3d Dept. 1999); citing Ross v. Curtis-Palmer Hydro-Elec. Co. 2d (1993); Rizzuto v. L.A. Wenger Contr. Co., Inc., 91 N. 2d 343, 34fftT 998)).. "To 'recover under this provision pialntif(tlsrrequliedto demonstratea' breach of a regulation containing specific commands and standards as opposed to one which simply incorporates general common-law standards of care (Rice v. City of Cortlandt, supra at p. 773; citing Comes v. New York State Elec. Gas Corp., 82

5 2d (1993); Ross v. Curtis-Palmer Hydro-Elec. Co., supra at pp ; White v. Sperry Supply Warehouse 225 A. 2d 130, 134 (3d Dept. 1996)). Although many of the regulations relied on by plaintiff are lacking in detail or inapplicable plaintiff also relies on 12 NYCRR , which provides specific guidelines to protect workers against electrocution. This regulation has been found sufficiently specific to support a claim under Labor Law ~ 241(6) (Rice v. City ofcortlandt, supra at p. 773; citing Adams v. Owens- Corning Fiberglass Corp., supra; Snowden v. New York City Transit Authority, 248 A. 2d (I st Dept. 1998); White v. Sperry Supply & Warehouse, supra at p. 124). In addition to employers, it has been found to apply to owners as well as tenants (Rice v. City of Cortlandt, supra at p. 773; citing Adams Owens-Corning Fiberglass Corp., supra at p. 236 and Halfown v. Triple D Leasing CQrp. 89 A. 2d 794 (4 Dept. 1982); see also, Baumann v. Metropolitan Life Insurance Company, 17 A.D.3d 260 (Ist Dept. 2005)). Section (b) (4) provides: No employer shall suffer or permit an employee to work in such proximity to any part of an electrcal power circuit that he may contact such circuit in the course of his work unless the employee is protected against electrcal shock by deenergizing the circuit and grounding it.... Section (b)(2) provides: Betermination of Voltages. Before orkis begun ' :' t~ employer shall determine the v6itag-e levels-of allenerglzea power lines..... Where two or more voltages are available at a job site, all electrical equipment and circuits shall be appropriately identified. Such identification shall include voltage level and phase. i.".''v.

6 It was ultimately determined that Martinez was working with an electrcal system which had not been de-energized. Accordingly, whether the defendants breached the duties imposed by 12 NYCRR presents an issue of fact. Plaintiff s motion for summary judgment is denied. Whether Martinez was contrbutorily negligent presents an issue of fact (Baumann v. Metropolitan Life Insurance Company, supra; Perri v. Gilbert Johnson Enterprises, Ltd. 14 A.D.3d 681 (2d Dept. 2003); Lorefice v. Reckson Operating Partnership, L.P. 269 A. 2d 572 (2d Dept. 2000); Snowden New York City Transit Authority, supra). To establish a claim for common-law indemnification the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contrbuted to the causation of the accident'" (Perri v. Gilbert Johnson Enterprises, Ltd., supra at pp , quoting Correia v. Professional Data Mgt., 259 2d (1 st Dept. 1999)) "or ' in the absence of any negligence' that the proposed indemnitor 'had the authority to direct, supervise, and control the work giving rise to the injur (Perri v. Gilbert Johnson Enterprises, Ltd., supra at pp , quoting Hernandez v. Two E. End Ave. Apt. Corp. 303 A. 2d (2d Dept. 2000)). Where the proposed indemnitee s liability is purely statutory and vicarious, conditional sumary JuclgmeIlt for con1on faw' indenmification"'agaiilst a proposecllnclemnltor Is"" premature absent proof, as a matter of law, that the proposed indemnitor ' was either negligent or exclusively supervised and controlled plaintiffs work site (Perri v. Gilbert Johnson Enterprises, Ltd., supra at pp , quoting Reily v. S. DiGiacomo Son,

7 Inc. 261 A. 2d 318 (pt Dept. 1999)). The evidence here not only clearly establishes that the landlord and the Gym played no par in this accident, it is equally clear that Delca alone supervised and controlled the work. Defendants ' application for a conditional order of indemnification against the third-part defendant, Delca, is granted (Singh v. Black Diamonds, LLC, 24 A. 3d 138 (1 st Dept. 2005); Cicala v. Stearns, Conrad and Schmidt Consulting Engineers, Inc. 10 Misc.3d 1066A (Supreme Cour Y. County, 2005)). In conclusion, with the exception of its claim pursuant to Labor Law ~ 241(6) and 12 NYCRR 23-13, plaintiff s complaint is dismissed. The defendants are granted a conditional order of indemnification against the third-part defendant, Delca Air Conditioning & Heating Corp. Dated: #,/1/ ENT RED tv\r SAU COUNTY NA v CLERK' S OFFICE COUN