RIVERA ASTUDILLO v. [And a Third–Party Action] (2019)

Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered on or about January 3, 2019, which, to the extent appealed from, as limited by the briefs, denied plaintiff's motion seeking partial summary judgment on his cause of action pursuant to Labor Law § 240(1), and denied the motions of defendant The Garden of Prayer Church of God in Christ, Inc. (Church of God) for summary judgment dismissing plaintiff's Labor Law § 240(1) claim and for summary judgment on its common law indemnity claim against Belfor Property Restoration (Belfor), unanimously modified, on the law, to grant plaintiff partial summary judgment on his Labor Law § 240(1) claim, and grant Church of God summary judgment on its common law indemnity claim, and otherwise affirmed, without costs.

Plaintiff's testimony that the ladder wobbled, flipped, and flopped, causing him to fall, sets forth a prima facie violation of Labor Law § 240(1) (see Cutaia v. Board of Mgrs. of the Varick St. Condominium, 172 A.D.3d 424, 100 N.Y.S.3d 221 [1st Dept. 2019]; Plywacz v. 85 Broad St. LLC, 159 A.D.3d 543, 72 N.Y.S.3d 80 [1st Dept. 2018]; Kebe v. Greenpoint–Goldman Corp., 150 A.D.3d 453, 454, 54 N.Y.S.3d 387 [1st Dept. 2017]; Goreczny v. 16 Ct. St. Owner LLC, 110 A.D.3d 465, 973 N.Y.S.2d 54 [1st Dept. 2013]).  Defendants failed to adduce any evidence rebutting plaintiff's showing, making summary judgment appropriate.

Plaintiff testified that he was using a Belfor ladder at the time of his fall.  Belfor's deponent, who had no knowledge of the accident, conceded that Belfor had ladders on site, and could not say whether plaintiff's employer, the subcontractor who furnished labor for the cleaning and debris removal portion of the project, also brought ladders.  There were no other subcontractors on site.  Belfor's deponent also testified that Belfor had a site supervisor, the only Belfor employee on site that day, and that he would have been “in the thick of it,” and not performing paperwork or similar administrative tasks.  Plaintiff, who wore a Belfor uniform at Belfor's behest, testified that Belfor employees were “the bosses,” ordering him around.  This evidence, taken together, is sufficient to establish that Church of God made a prima facie showing of entitlement to common law indemnity (see generally McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 378, 929 N.Y.S.2d 556, 953 N.E.2d 794 [2011]).  In opposition, Belfor did not adduce any evidence to rebut that showing.  Notably, the daily paperwork generated by Belfor is not in the record, nor is there any testimony or affidavit from the Belfor site supervisor who was present that day.  Thus, summary judgment in favor of Church of God on its claim against Belfor is warranted.