LIVECCHI v. EASTMAN KODAK COMPANY (1999)

Plaintiff commenced this action to recover damages for injuries he sustained in a fall from a ladder.   Defendant-third-party plaintiff, Eastman Kodak Company (Kodak), hired plaintiff's employer, third-party defendant, Youst Painting Co., Inc., a/k/a Don Youst Painting Company (Youst), to provide painting services.   The accident occurred during the process of spraying the walls and ceiling of a room with water in preparation for painting.   Plaintiff slipped off the ladder and fell to the floor.

 Supreme Court granted plaintiff's motion for partial summary judgment on liability under Labor Law § 240(1).   Kodak did not appeal from that part of the order.   Plaintiff presented proof establishing as a matter of law that the ladder did not provide proper protection, and “there is no view of the evidence here which could lead to the conclusion that the violation of Labor Law § 240(1) was not the proximate cause of the accident” (Felker v. Corning Inc., 90 N.Y.2d 219, 225, 660 N.Y.S.2d 349, 682 N.E.2d 950;  see, Szymanski v. Nabisco, Inc., 256 A.D.2d 1154, 684 N.Y.S.2d 122).

 The court properly granted that part of the cross motion of Kodak for summary judgment on its causes of action seeking contractual and common-law indemnification.   Kodak presented proof establishing that it was not negligent and that its liability to plaintiff under Labor Law § 240(1) is strictly vicarious;  Youst failed to submit evidence raising a triable issue of fact (see, Delaney v. Spiegel Assocs., 225 A.D.2d 1102, 1103-1104, 639 N.Y.S.2d 637).

 The court erred, however, in denying that part of Kodak's cross motion seeking summary judgment dismissing the Labor Law § 200 claim and negligence cause of action.   The record establishes that Kodak did not exercise supervision or control over the work of plaintiff or Youst and that the dangerous condition arose from Youst's methods and procedures (see, Wilcox v. Paragon Cable T.V., 241 A.D.2d 914, 915, 661 N.Y.S.2d 397;  Gray v. Balling Constr. Co., 239 A.D.2d 913, 659 N.Y.S.2d 630).   We therefore modify the order by granting in part Kodak's cross motion and dismissing the Labor Law § 200 claim and negligence cause of action.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: