MARTINEZ GONZALEZ v. 56 WEST 75TH STREET LLC (2019)

Orders, Supreme Court, Bronx County (Robert T. Johnson, J.), entered April 5, 2018, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment against defendants 56 West 75th Street, LLC and Brusco Contracting Corp. on the issue of liability under Labor Law § 240(1), and granted defendant 56 West's motion for summary judgment on its claim against second/third third-party defendant Pearl Renovations, Inc. (Pearl) for contractual indemnification, and, upon searching the record, granted summary judgment to defendant Brusco on its contractual indemnification claim against Pearl, unanimously affirmed, without costs.

Plaintiff was injured in a fall from a scaffold.  It is undisputed that the scaffold he was supplied with and directed to use lacked railings, and that he fell off when the scaffold tipped as one wheel broke through the floor on which it was standing.  Plaintiff was not provided with any other safety devices.  This evidence establishes prima facie a violation of Labor Law § 240(1) (see Celaj v. Cornell, 144 A.D.3d 590, 42 N.Y.S.3d 25 [1st Dept. 2016];  Vergara v. SS 133 W. 21, LLC, 21 A.D.3d 279, 800 N.Y.S.2d 134 [1st Dept. 2005] ).  Plaintiff was not required to show that the scaffold was defective (see Ross v. 1510 Assoc. LLC, 106 A.D.3d 471, 964 N.Y.S.2d 514 [1st Dept. 2013];  see also Kash v. McCann Real Equities Devs., 279 A.D.2d 432, 720 N.Y.S.2d 70 [1st Dept. 2001];  Gallagher v. Bechtel Corp., 245 A.D.2d 36, 664 N.Y.S.2d 781 [1st Dept. 1997] ).  In opposition, Pearl failed to raise an issue of fact.

Pearl, plaintiff's employer, which was hired to do sheetrocking and taping work at the job site, signed an agreement in connection with the renovation work, which clearly and unambiguously obligated it to defend and indemnify 56 West and Brusco for any personal injury claims resulting therefrom.  56 West and Brusco had no involvement in plaintiff's work, and their liability to plaintiff was strictly vicarious.  Under these circumstances, defendants are entitled to contractual indemnification by Pearl (Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 179, 556 N.Y.S.2d 991, 556 N.E.2d 430 [1990];  see Masciotta v. Morse Diesel Intl., 303 A.D.2d 309, 312, 758 N.Y.S.2d 286 [1st Dept. 2003] ).