TROPEA v. [And a Third Party Action] (2019)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about November 1, 2017, insofar as it granted plaintiff's motion for summary judgment on liability on his Labor Law § 240(1) claim, and denied the motions of defendants/third-party plaintiffs AECOM Technology Corporation (AECOM), Mack–Cali Realty Corporation and M–C 125 Broad C LLC (collectively, the AECOM defendants), and USIS Systems, Inc. for summary judgment dismissing the Labor Law § 240(1) claim, unanimously affirmed, without costs.  Appeal from the foregoing order, insofar as it granted USIS Electric's motion for summary judgment dismissing the AECOM defendants' third-party claim for contractual indemnification against USIS Electric, unanimously dismissed, without costs.

The cable tray that fell on plaintiff's head from atop two ladders was an object that required securing to prevent it from falling (see Outar v. City of New York, 5 N.Y.3d 731, 799 N.Y.S.2d 770, 832 N.E.2d 1186 [2005], affg 286 A.D.2d 671, 730 N.Y.S.2d 138 [2d Dept. 2001];  Rutkowski v. New York Convention Ctr. Dev. Corp., 146 A.D.3d 686, 46 N.Y.S.3d 54 [1st Dept. 2017] ).  The distance the tray fell was not de minimis and “the harm to plaintiff was the direct consequence of the application of the force of gravity” upon the unsecured cable tray (Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 604, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009];  see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 10, 935 N.Y.S.2d 551, 959 N.E.2d 488 [2011] ).  Moreover, securing the cable tray against falling would not have been contrary to the purpose of the work (see Ragubir v. Gibraltar Mgt. Co., Inc., 146 A.D.3d 563, 564, 45 N.Y.S.3d 76 [1st Dept. 2017];  Salazar v. Novalex Contr. Corp., 18 N.Y.3d 134, 139–140, 936 N.Y.S.2d 624, 960 N.E.2d 393 [2011] ).

Supreme Court correctly concluded that USIS Systems was liable under Labor Law § 240(1) as an agent of the owner (Russin v. Louis N. Picciano & Scahill, P.C., Bethpage (of counsel), for & Son, 54 N.Y.2d 311, 318, 445 N.Y.S.2d 127, 429 N.E.2d 805 [1981] ).  Here, the terms of the subcontract by which USIS Systems subcontracted the work to USIS Electric demonstrate that USIS Systems had been delegated authority to direct and control the work (see Weber v. Baccarat, Inc., 70 A.D.3d 487, 488, 896 N.Y.S.2d 12 [1st Dept. 2010] ).  Moreover, as premises lessee which contracted for the work, AECOM was an owner within the meaning of Labor Law § 240(1) (Zaher v. Shopwell, Inc., 18 A.D.3d 339, 339–340, 795 N.Y.S.2d 223 [1st Dept. 2005].  We dismiss the appeal from the order insofar as the order granted USIS Electric's motion to dismiss the third-party complaint, since the AECOM defendants did not serve USIS Electric with the appendix and brief (see 22 NYCRR 1250.9[2] ).