CRESSER v. 345 PARK AVENUE (2021)

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered April 8, 2019, which, insofar as appealed from, denied the motion of defendant/third-party plaintiff/second third-party plaintiff JT Magen & Co., Inc. and defendant/second third-party plaintiff NFL Enterprises for summary judgment dismissing the Labor Law § 241(6) claim as against them predicated on Industrial Code § 23–1.7(e)(1) and the Labor Law § 200 claim as against JT Magen, and on their contractual indemnification claims against third-party defendant/second third-party defendant Antovel Gelberg Painting & Wallpapering, Inc. and second third-party defendant William Erath & Son, Inc., unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

Because the raised floor over which plaintiff tripped was integral to the work, Industrial Code § 23–1.7(e)(1) is inapplicable (Krzyzanowski v. City of New York, 179 A.D.3d 479, 480, 118 N.Y.S.3d 10 [1st Dept. 2020]).  Accordingly, JT Magen and NFL Enterprises are entitled to summary judgment dismissing the Labor Law § 241(6) claim based on Industrial Code § 23–1.7(e)(1).  Because JT Magen did not direct or control the work of Erath & Son, it is entitled to dismissal of the Labor Law § 200 claim as against it (Dalanna v. City of New York, 308 A.D.2d 400, 764 N.Y.S.2d 429 [1st Dept. 2003]).  Because plaintiff tripped over the raised floor installed by Erath & Son, the accident arose from its acts in connection with performance of the work, triggering its indemnification obligation under its subcontract with JT Magen (Keena v. Gucci Shops, Inc., 300 A.D.2d 82, 751 N.Y.S.2d 188 [1st Dept. 2002]).  Furthermore, since plaintiff was injured while at the site to perform work for Antovel Gelberg, the accident arose from its acts in connection with the performance of the work triggering its indemnification obligation under its subcontract with JT Magen (Guido v. Dormitory Auth. of State of N.Y., 145 A.D.3d 591, 592–593, 43 N.Y.S.3d 350 [1st Dept. 2016];  Alarcon v. UCAN White Plains Hous. Dev. Fund Corp., 100 A.D.3d 431, 431–432, 954 N.Y.S.2d 13 [1st Dept. 2012]).