Madrigal v Babylon Assocs NY Slip Op 30943(U) April 22, 2013 Supreme Court, Suffolk County Docket Number: Judge: W.

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1 Madrigal v Babylon Assocs NY Slip Op 30943(U) April 22, 2013 Supreme Court, Suffolk County Docket Number: Judge: W. Gerard Asher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts ( for any additional information on this case. This opinion is uncorrected and not selected for official publication.

2 [* 1] SHORT FORM ORDER INDEX NO CAL. NO T SUPREME COURT - STATE OF NEW YORK I.A.S. PART 32 - SUFFOLK COUNTY PRESENT: Hon. W. GERARD ASHER Justice of the Supreme Court MOTION DATE (#003) MOTION DATE (#004) MOTION DATE (#005) ADJ.DATE Mot. Seq. #003 - MD # XMI) # XMD CANNON & ACOSTA, LLP Attorneys for Plaintiff 1923 New York Avenue Huntington Station, New York RUBIN, FIORELLA &; FRIEDMAN, LL,P Attorneys for DefendadThird-Party Plaintiff Babylon Associates 630 Third Avenue New York, New York BABYLON ASSOCIATES, LLC formerly known as BABYLON ASSOCIATES, - against - Plaintiff, KRAL, CLERKIN, REDMOND, RYAN, PERRY & VAN ETTEN, LLP Attorneys for Third-party Defendant 53 8 Broadhollow Road, Suite 200 Melville, New York WEATHER WISE CONTRACTING, INC., Defendant. Upon the followhg papers numbered 1 to &read on this motion and these cross motions for summary iudgment : Notice of Motion/ Order tso Show Cause and supporting papers 1-12 ; Notice of Cross Motion and supporting papers 13-20; ; Answering Affidavits and supporting papers 35-38; 39-40; ; Replying Affidavits and supporting papers-& - 44 ; Other -; (amk&ed- ) it is,

3 [* 2] Index No Page No. 2 ORDERED that the motion by defendadthird-party plaintiff Babylon Associates for, inter alia, summary judgment dismissing the complaint against it is denied; and it is ORDERED that the cross motion by plaintiff Alberto Madrigal for partial summary judgment on the issue of liability on his Labor Law $240 (1) claim is denied; and it is ORDERED that the cross motion by third-party defendant Weather Wise Contracting, Inc., fbr, inter alia, summary jiudgment dismissing the third-party complaint against it is den;.ed. Plaintiff Alberto Madrigal commenced this action to recover damages for personal injuries he allegedly sustained on September 17, 2008, while installing new gutters on the roof of an apartment complex located on Park Ave, Babylon, New York. Plaintiff allegedly was electrocuted and fell from an aluminum extension ladder when the gutters he and his co-workers were installing made contact with overhead power lines. The apartment building was owned by defendantkhird-party plaintiff Babylon Associates, which hired third-party defendant Weather Wise Contracting, Inc., as the prime contractor for the project. Weather Wise then retained Lifetime Gutters, plaintiffs employer zit the time of the accident, for the purpose of installing the gutters. By way of his complaint, plaintiff alleges causes of action against defendants for common law negligence, and for violations of Labor Law $8 240 (l), 241 (6) and 200. Plaintiff s bill of particulars also asserts, inter alia, a violation of section (b) of the New York Industrial Code. Babylon Associates joined issue and asserted general denials and affirmative defenses to the action. On August 3,2009, Babylon Associates commenced a third-party action against Weather Wise alleging causes of action for contribution, and common law and contractual indemnification. In its answer to the third-party complaint, Weather Wise asserts identical counterclaims against Babylon Associates. Babylon Associates now moves for summary judgment in its favor dismissing the compllaint against it on the grounds plaintiff failed to state causes of action under Labor Law {i$ 240 (1) and 241 (6), and that it cannot be held liable for his injuries under Labor Law $200, as it neither controlled nor supervised his work, and did not create or have actual or constructive notice of any alleged dangerous condition at the worltsite. Alternatively, Babylon Associates seeks summary judgment over and against Weather Wise on its third-party complaint. Plaintiff opposes the motion and cross-moves for summary judgment on his Labor Law $240 (1) claim, arguing that he sustained gravity-related injuries when he fell from the ladder. Weather Wise also opposes Babylon Associates motion, arguing, inter alia, that Babylon Associates fiiiled to demonstrate it was free of negligence in the underlying accident, and that the indemnification clause contained in thle parties agreement violates the General Obligations Law. Additionally, Weather Wise cross-moves for summary judgment dismissing the third-party complaint against it or, alternatively, for an order granting it summary judgment on its counterclaims. Babylon Associates opposes both cross motions. Labor Law tj 240 (1) requires that building owners and contractors involved in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be -Furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so

4 [* 3] Index No Page No. 3 constructed, placed,and operated as to give proper protection to a person so emplo!ied. The kind of accident triggering Labor Law Q 240 (1) coverage is one that will sustain the allegation that an adequate scaffold, hoist, stay, ladder or other protective device would have shield[ed] the injured worker from harm directly flowing from the application of the force of gravity to an object or person (Ross v Curtis- Palmer Hydro-Elec. Co., 8 1 NY2d 494, 501,601 NYS2d 49 [1993]; see Salazar Novalex Contr. Corp., 18 NY3d 134,139,936 NYS2d 624 [2011]). [A]ltering within the meaning of Labor Law Q 240 (1) requires making a significant physical change to the configuration or composition of the building or structure (Joblon v Solow, 91 NY2d 4157, 465,672 NYS2d 286 [1998]). Plaintiffs work of installing new gutters on the roof of an apartment complex constituted a significant physical change and, therefore, falls under the enumerated activity of altering within the meaning of Labor Law Q 240 (1) (see Schick v 200 Blydenburgh, LLC, 88 AD3d 684, 930 NYS2d 604 [2d Dept , lv to appeal dismissed 19 NY3d 876, 947 NYS2d 50 [2012]; Velasco v Green-Wood Cemetery, 8 AD3d 88,779 NYS2d 459 [lst Dept 20041; compare Azad v 270 5th Realty Corp, 46 AD3d 728, 848 NYS2d 688 [2d Dept 20071). In addition, the fact that plaintiff fell off of the ladder only after he sustained an electric shock does not preclude recovery under Labor Law Q 240 (1) for injuries sustained as a result of the fall from the ladder (see Izrailev v Fticarra Furniture of Long Is., 70 NY2d 8113, 523 NYS2d 432 [1987]; Gange v Tilles Inv. Co., 220 AD2d 556,632 NYS2cL 808 [2d Dept 19951). Rather, the adduced evidence raises triable issues as to whether, inter alia, the ladder, which was not shown to be defective, failed to provide proper protection, arid whether plaintiff should have been provided with additional safety devices (see Gange v Tilles Inv. Co., supra; see also Quackenbush v Gar-Ben Assocs., 2 AD3d 824,769 NYS2d 387 [2d Dept 20031). Therefore, that branch of Babylon Associates motion for summary judgment dismissing plaintiffs Labor Law (1) cause of action is denied. Babylon Associates also failed to establish its prima face entitlement to summary judgment dismissing plaintiffs claim under Labor Law Q 24 1 (6). Section 24 1 (6) of the Labor Law provides that [all1 areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted so as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully freqiienting such places. It further imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully :frequenting, all areas in which construction, excavation or demolition work is being performed (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343,348,670 NYS2d 816 [1998], quoting Labor Law Q 241(6); see Harrison v State, 88 AD3d 951, 931 NYS2d 662 [2d Dept ). Since the statute is not selg-executing, a plaintiff seeking to establish liability under Labor Law (6) must allege the violation of a specific and applicable provision of the Industrial Code (see Wilinski v 334 East 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 935 NYS2d 551 [2011]; Ross v Curtis-Palmer Hydro-Elec. Co., supra., Jara v New York RacingAssn., Znc., 85 AD3d 1121, 1123,927 NYS2d 87 [2d Dept ; D Elia v City ofnew York, 81 AD3d 682,684,9 16 NYS2d 196 [2d Dept ). Labor Law (6) applies to the subject project, because it involved the alteration of a building or structure, which satisfies the definition of construction work (see 12 NYCRR (b) (13); McLean v 405 IVebsterAve. Assocs., 98 AD3d 1090,951 NYS2d 185 [2d Dept 20121; see also

5 [* 4] Index No Page No. 4 Joblon v Solow, 91 NY2d 457,672 NYS2d 286 [ 19981; Schick v 200 Blydenburgh, LLC, supra). Moreover, plaintiffs supplemental bill of particulars, which alleges, inter alia, a violation of section of the Industrial Code, sets forth a specific and applicable provision (see e.g. DelRosario v Unii ed Nations Fed. Credit Union -AD3d-, 2013 NY Slip Op 1625 [ 1 st Dept 20131; AYarris v Arne11 Constr. Corp., 47 AD3d 768, 850 NYS2d 547 [2d Dept 20081; Adams v Owens-Corning Fiberglass Corp., 260 AD2d 877, 688 NYS2d 788 [3d Dept 19991). Accordingly, the branch of Babylon Associates motion for summary judgment dismissing plaintiffs claim under Labor Law $241 (6) is denied. As to the branch of Babylon Associates motion seeking summary judgment dismissing plaintiffs remaining, claim, Labor Law is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work (see Comes v New I ork State Elec. and Gas Corp., 82 NY2d 876, 609 NYS2d 168 [1993]; Ross v Curtis-Palmer Hydro-Electric Co., supra; Lombardi v Stout, 80 NY2d 290, 590 NYS2d 55 [ 199;!]; Rojas v Schwartz, 74 AD3d 1046, 903 NYS2d 484 [2d Dept 20101). Where a dangerous condition or1 the premises is at issue, the owner or general contractor may be held liable under Labor Law if they either created the dangerous condition that caused the accident or had actual or constructive notice of the condition (see Ortega v Puccia, 57 AD3d 54, 866 NYS2d 323 [2d Dept 20081). By contrast, when a claim arises out of alleged defect,s or dangers in the methods or materials of the work, there can be no recovery against the owner or general contractor under Labor Law or common-law negligence unless it js shown that the party to be charged had the authority to supervise or control the performance of the work (see Rizzuto v L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 352, 670 NYS2d 816 [ 19981; Russin v Louis N. Picciano & Son, 54 NY2d 3 1 1, 3 17,445 NYS2d 127 [ 198 1l;Ortega v Puccia, supra). Here, Babylon Associates failed to meet its prima facie burden on the motion, as triable issues exist as to whether Babylon Associates project manager served as the general contractor for the project and possessed supervisory authority over plaintiffs work (see Forssell v Lerner, 101 AD3d 807,956 NYS2d 117 [2d Dept 20121; Szczepanski v Dandrea Constr. Corp., 90 AD3d 642,934 NYS2d 432 [2d Dept ; Rodriguez v Hope Margulies Gany, 82 AD3d 863,918 NYS2d 187 [2d Dept ). Significantly, Babylon Associates project manager testified, inter alia, that he could be considered the general contractor for the project and that he inspected the work of the contractors, [ncluding Lifetime Gutters, to oversee thie quality and progress of their work. Therefore, the branch of Babylon Associates s motion for summary judgment dismissing plaintiffs Labor Law $200 claim also is denied. Inasmuch as I3abylon Associates failed to demonstrate that it was free from negligence with regard to the happening of the subject accident, the branch of its motion for summary judgment on its third-party complaint is denied (see Nenadovic v P.T. Tenants Corp., 94 AD3d 534, 942 NYS2d 474 [Ist Dept 20121; Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662, 871 NYS2d 654 [2d Dept 20091; (Callan vstructure Tone, Inc., 52 AD3d 334, , 860 N YS2d 62 [lst Depit 20081). Likewise, as it has not been determined whose negligence, if any, caused plaintiffs accident, the cross motion by Weather Wise for summary judgment dismissing the third-party complaint against it lor, alternatively, for an order granting it summary judgment on its counterclaims is demed (see McAllister v Construction Consultants L.I. Inc., 83 AD3d 1013,921 NYS2d 556 [2d Dept 201 I]; Martinez v CitJv ofnew York, 73 AD3d 993,901 NYS2d 339 [2d Dept 20101; Erickson v Cross Ready Mix, Inc., 75

6 [* 5] Index No Page No. 5 AD3d 519,906 NYS2d 284 [2d Dept 20101; Benedetto v Carrera Realty Corp., 32. AD3d 874,822 NYS2d 542 [2d Dept 20061; Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, , 790 NYS2d 25 [2d Dept 20051). Finally, the existence of triable issues as to whether Babylon Associates was negligent under Labor Law $240 (1) for failing to provide plaintiff with additional protection designed to prevent or break his fall requires denial of plaintiffs cross motion for partial summary judgment on the issue liability with respect to such claim. J.S.C. FINAL DISPOSITION X NON-FINAL DISPOSITION