ANDRADE v. City of New York, Defendant, (2006)

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

Arlindo ANDRADE, Plaintiff, v. TRIBOROUGH BRIDGE & TUNNEL AUTHORITY, doing business as MTA Bridges & Tunnels, et al., Defendants-Appellants, City of New York, Defendant,
Warde Electric Contracting, Inc., Defendant-Respondent-Appellant. [And a Third-Party Action] Triborough Bridge & Tunnel Authority, doing business as MTA Bridges & Tunnels, et al., Third-Party Plaintiffs-Respondents, v. Transcontinental Insurance Company, et al., Third-Party Defendants-Appellants, USI Northeast Inc., et al., Third-Party Defendants, Westport Insurance Corporation, Third-Party Defendant-Respondent.

Decided: December 14, 2006

ANDRIAS, J.P., FRIEDMAN, SULLIVAN, NARDELLI, MALONE, JJ.

Ellenberg & Rigby, LLP, New York (James H. Irish of counsel), for Triborough Bridge & Tunnel Authority and Perini Contracting, appellants/respondents. Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for respondent-appellant. Colliau Elenius Murphy Carluccio Keener & Morrow, New York (Marian S. Hertz of counsel), for Transcontinental Insurance Company and Transportation Insurance Company, appellants. Nicoletti Gonson & Spinner LLP, New York (Gary R. Greenman of counsel), for Westport Insurance Corporation, respondent.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about April 14, 2005, which, to the extent appealed from as limited by the briefs, granted the motion of defendant Warde Electric Contracting for summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 and § 241(6) claims against it, but denied so much of that motion seeking summary dismissal of the cross claims for indemnification against it by defendants TBTA and Perini, and dismissed TBTA's additional party complaint as against third-party defendant Westport Insurance, unanimously modified, on the law, Warde's motion for summary judgment denied with respect to plaintiff's claims for common-law negligence and under Labor Law § 200, those claims reinstated, and otherwise affirmed, without costs.

It is undisputed that plaintiff's injury was caused by his trip and fall into a construction site hole that was negligently left uncovered. The claim under Labor Law § 241(6) was properly dismissed as against Warde because there was no evidence that it was a statutory agent, owner or general contractor at the site. Similarly, there is no basis for the summary relief defendants TBTA and Perini now seek on their third-party claims against Warde's insurers, Transcontinental Insurance and Transportation Insurance. However, we find, upon reviewing the record, that Warde did not sufficiently establish that it could not have been the negligent party, in light of other testimony that Warde was seen working in or near the hole on the day in question, thus leaving an issue of fact on the claims for common-law negligence and under § 200.

The third-party complaint as against defendant Westport Insurance was properly dismissed for lack of privity. Although Westport did not move for that specific relief, the privity issue was briefed by its fellow third-party defendants on their motions to dismiss (cf. Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 654 N.Y.S.2d 335, 676 N.E.2d 1178 [1996] ).

We have considered the parties' remaining arguments for affirmative relief and find them unavailing.

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