PAUL SMITH PLAINTIFF RESPONDENT v. NESTLE PURINA PETCARE COMPANY DEFENDANT APPELLANT (2013)

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Chautauqua County (James H. Dillon, J.), entered February 17, 2012.   The order denied the motions of defendant-third-party plaintiff and the cross motion of third-party defendant for summary judgment.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting those parts of the motion of defendant-third-party plaintiff and the cross motion of third-party defendant for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims except insofar as the latter claim is based on the alleged violation of 12 NYCRR 23–1.7(e)(2) and dismissing those claims to that extent and as modified the order is affirmed without costs.

We conclude that Supreme Court erred in denying those parts of Nestle's motion and Austin's cross motion for summary judgment dismissing plaintiff's Labor Law § 240(1) cause of action inasmuch as “plaintiff's injury resulted from a separate hazard wholly unrelated to the danger that brought about the need for the ladder in the first instance—an unnoticed or concealed object on the floor” (Nieves v Five Boro A.C. & Refrig.   Corp., 93 N.Y.2d 914, 916;  see Cohen v Memorial Sloan–Kettering Cancer Ctr., 11 NY3d 823, 825;  Meslin v. New York Post, 30 AD3d 309, 310).   We therefore modify the order accordingly.

We conclude, however, that the court erred in denying those parts of Nestle's motion and Austin's cross motion for summary judgment dismissing the Labor Law § 241(6) cause of action to the extent that it is based upon an alleged violation of 12 NYCRR 23–1.7(d), and we therefore further modify the order accordingly.   Pursuant to that regulation, “[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.”   That regulation is not applicable to the facts of this case because “the [grain dust] on which plaintiff slipped was the very condition he was charged with removing” and thus was an integral part of the task plaintiff was performing (Gaisor v. Gregory Madison Ave., LLC, 13 AD3d 58, 60;  see Galazka v WFP One Liberty Plaza Co., LLC, 55 AD3d 789, 789, lv denied 12 NY3d 709;  Basile v. ICF Kaiser Engrs.   Corp., 227 A.D.2d 959, 959).   Furthermore, we note that plaintiff on appeal has abandoned any reliance on the remaining regulations set forth in his bill of particulars with respect to the basis for the alleged violation of Labor Law § 241(6), and we thus additionally modify the order by granting the motion and cross motion for summary judgment dismissing the Labor Law § 241(6) claim to that extent as well (see Roosa v Cornell Real Prop. Servicing, Inc., 38 AD3d 1352, 1354;  Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984).

Finally, we conclude that the court properly denied those parts of the motion of Nestle and the cross motion of Austin for summary judgment on the issue of Nestle's entitlement to contractual indemnification from Austin.  “An indemnification agreement will be deemed void and unenforceable if the party seeking indemnification was itself negligent” (Giglio v St. Joseph Intercommunity Hosp., 309 A.D.2d 1266, 1268, amended on rearg 2 AD3d 1485;  see General Obligations Law § 5–322.1;  Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 794, rearg. denied 90 N.Y.2d 1008).   Contrary to the contentions of Nestle and Austin, there is a triable issue of fact whether Nestle was negligent, and we therefore “are unable to determine at this stage of the litigation whether the indemnity provision in the contract between [Nestle] and [Austin] violates General Obligations Law § 5–322.1” (Miller v. Pike Co., Inc., 52 AD3d 1240, 1241).   Contrary to Austin's further contention, Workers' Compensation Law § 11 does not bar Nestle from seeking contractual indemnification from Austin inasmuch as the contract between them contains an express indemnification provision (see Rodrigues v. N & S Bldg. Contrs., Inc., 5 NY3d 427, 431–432).   Contrary to Nestle's further contention, the contract's indemnification provision does not contain limiting language that insulates it from the ambit of General Obligations Law § 5–322.1 (see generally Brooks v. Judlau Contr., Inc., 11 NY3d 204, 207–209;  Ostuni v. Town of Inlet, 64 AD3d 854, 855).

Frances E. Cafarell

Clerk of the Court