FULLER v. Maximus Properties and John W. Girard, Respondents-Appellants. (1998)

 Supreme Court erred in granting that part of plaintiffs' cross motion for partial summary judgment on liability on the Labor Law § 240(1) claim against defendant NC3, Inc., d/b/a National Commodity Clearance Center (NC3) and in denying that part of the motion of NC3 for summary judgment dismissing that claim against it.   NC3 was not an owner within the meaning of Labor Law § 240(1) and had no right to control the work (see, Frierson v. Concourse Plaza Assocs., 189 A.D.2d 609, 592 N.Y.S.2d 309;  Santos v. American Museum of Natural History, 187 A.D.2d 420, 421-422, 589 N.Y.S.2d 520;  Krieger v. PAT Constr., 112 A.D.2d 10, 490 N.Y.S.2d 393).   The court properly granted, however, that part of plaintiffs' cross motion on section 240(1) liability with respect to the remaining defendants.   There is no merit to the contention of defendants Maximus Properties and John W. Girard (collectively Maximus) that the work performed by Donald A. Fuller, Jr. (plaintiff) was not a protected activity under Labor Law § 240(1).   Plaintiff fell while ascending a ladder to the roof to repair a malfunctioning air conditioner, and thus he was engaged in an activity protected by section 240(1) (see, Sprague v. Peckham Materials Corp., 240 A.D.2d 392, 658 N.Y.S.2d 97;  cf., Rowlett v. Great S. Bay Assocs., 237 A.D.2d 183, 655 N.Y.S.2d 16, lv. denied 90 N.Y.2d 809, 664 N.Y.S.2d 271, 686 N.E.2d 1366).  In this case, the ladder used by plaintiff was “a tool of plaintiff's work” (Kozlowski v. Alcan Aluminum Corp. [appeal No. 2], 209 A.D.2d 930, 931, 621 N.Y.S.2d 240;  see, Szopinski v. MJ Mech. Servs., 217 A.D.2d 906, 907, 629 N.Y.S.2d 926, appeal dismissed 87 N.Y.2d 861, 639 N.Y.S.2d 312, 662 N.E.2d 793).

 The court also erred in denying those parts of defendants' motions for summary judgment dismissing the Labor Law § 200 claim.   Defendants did not control, direct or supervise plaintiff's work, and plaintiff has not shown that they had notice of the dangerous condition that produced his injury (see, Sprague v Peckham Materials Corp., supra, at 394, 658 N.Y.S.2d 97).

Finally, the court erred in granting the cross motion of Maximus for indemnification and denying the motion of NC3 seeking indemnification from Maximus.   Maximus was the owner of record, had a pre-occupancy obligation to ensure that the air conditioner was in working order, had agreed to a 90-day warranty, and had in fact ordered the repair, whereas NC3 merely asked Maximus to repair the broken air conditioner.   Under the circumstances, NC3 is entitled to indemnification from Maximus (see, Chapel v. Mitchell, 84 N.Y.2d 345, 347, 618 N.Y.S.2d 626, 642 N.E.2d 1082;  Mount v. Gamble Mach., 209 A.D.2d 957, 619 N.Y.S.2d 1017, lv. dismissed 85 N.Y.2d 967, 629 N.Y.S.2d 725, 653 N.E.2d 621).

Thus, we modify the order by granting that part of the motion of NC3 for summary judgment dismissing the Labor Law § 240(1) claim against it, denying that part of plaintiffs' cross motion for partial summary judgment on liability on the Labor Law § 240(1) claim against NC3, granting those parts of the motions of defendants for summary judgment dismissing the Labor Law § 200 claim against them, granting that part of NC3's motion seeking indemnification from Maximus and denying the cross motion of Maximus seeking indemnification from NC3.

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

MEMORANDUM: