GRIMES v. PYRAMID COMPANIES OF ONONDAGA (1997)

Plaintiff, a carpenter, sustained injuries when he fell from structural scaffolding during construction of the Carousel Center Mall in Syracuse.   Plaintiff commenced this action against The Pyramid Companies of Onondaga (Pyramid), the owner and general contractor, and NewRic Construction Co., Inc. (NewRic), a prime contractor, alleging causes of action for common-law negligence and violation of Labor Law §§ 200, 240(1) and § 241(6).   NewRic commenced a third-party action against plaintiff's employer, Frank L. Ciminelli Construction Co., Inc. (Ciminelli), another prime contractor, for common-law indemnification and contribution, and Pyramid asserted cross claims against NewRic for common-law indemnification and against Ciminelli for common-law and contractual indemnification.

Supreme Court granted plaintiff's motion for summary judgment on the Labor Law § 240 cause of action with respect to Pyramid but denied it with respect to NewRic.   The court granted the cross motion of Pyramid for summary judgment dismissing the Labor Law § 200 cause of action against it and for summary judgment on its cross claim for contractual indemnification, and the court awarded Pyramid reasonable attorney's fees “from the time Pyramid tendered its defense”.   The court denied the cross motion of NewRic insofar as it sought summary judgment dismissing the complaint against it and denied as premature the alternative request of NewRic for summary judgment on its cause of action for common-law indemnification from Ciminelli.

 We agree with NewRic that the court should have dismissed the complaint against it.   NewRic is not liable under Labor Law § 240(1) and § 241(6) because it was not an owner or general contractor, nor had it been delegated the authority to supervise or control plaintiff's work (see, Russin v. Picciano & Son, 54 N.Y.2d 311, 317-318, 445 N.Y.S.2d 127, 429 N.E.2d 805;  Long v. John W. Danforth Co., 236 A.D.2d 789, 653 N.Y.S.2d 772;  Wright v. Nichter Constr. Co., 213 A.D.2d 995, 624 N.Y.S.2d 487).  The fact that NewRic may have furnished the scaffold from which plaintiff fell “does not automatically give it the authority to control the worksite” (Walsh v. Sweet Assocs., 172 A.D.2d 111, 114, 577 N.Y.S.2d 324, lv. denied 79 N.Y.2d 755, 581 N.Y.S.2d 666, 590 N.E.2d 251;  see, Smith v. Cassadaga Val. Cent. School Dist., 178 A.D.2d 955, 956-957, 578 N.Y.S.2d 747).

 NewRic also is not liable under Labor Law § 200 because it did not supervise or control plaintiff's work (cf., Russin v. Picciano & Son, supra, at 317, 445 N.Y.S.2d 127, 429 N.E.2d 805).   With respect to the negligence cause of action, NewRic established that the scaffolding from which plaintiff fell was not improperly constructed or otherwise defective and, thus, that it did not create a dangerous condition or defect that caused plaintiff's injuries (cf., Macutek v. Lansing, 226 A.D.2d 964, 640 N.Y.S.2d 693;  Mazzu v. Benderson Dev. Co., 224 A.D.2d 1009, 1012, 637 N.Y.S.2d 540).  Neither plaintiff nor Ciminelli raised a triable issue of fact in response thereto (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

 We further conclude that the court erred in limiting Pyramid's entitlement to recovery of attorney's fees from Ciminelli to those fees incurred “from the time Pyramid tendered its defense”.   The contract between Pyramid and Ciminelli provides that Ciminelli “shall fully protect, defend indemnify and save harmless [Pyramid] against all liability, judgments, damages, cost and expense, including attorney's fees and costs, arising from any and all such claims relating to the work performed hereunder and to conditions on the site.”   Pursuant to that provision, Pyramid is entitled to recover all reasonable attorney's fees incurred in defense of plaintiff's action.

 Finally, Pyramid has appealed from the order only insofar as it limited its entitlement to attorney's fees from Ciminelli.   Thus, Pyramid's contention that the court erred in denying that part of the cross motion seeking summary judgment on the cross claim for common-law indemnification from Ciminelli is not properly before us (see, Sugar Creek Stores v. Pitts, 198 A.D.2d 833, 604 N.Y.S.2d 407;  Whittaker v. Cohen, 178 A.D.2d 941, 578 N.Y.S.2d 321).

We therefore modify the order by granting the cross motion of NewRic for summary judgment dismissing the complaint against it and granting the cross motion of Pyramid insofar as it sought recovery from Ciminelli of all reasonable attorney's fees incurred in defense of plaintiff's action.

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

MEMORANDUM: