HAMMER v. Premier Electric, Inc., Defendant–Respondent, (2021)

Order, Supreme Court, New York County (James E. d'Auguste, J.), entered August 2, 2019, which, to the extent appealed from as limited by the briefs, granted defendants ACC Construction Corporation, 370 Seventh Avenue Associates, LLC, and Comscore, Inc.’s (owner defendants) motion for summary judgment dismissing the Labor Law § 241(6) claim premised on Industrial Code § 23–1.7(e)(2) as against them and the Labor Law § 200 and common-law negligence claims as against ACC, denied their motion for summary judgment on their cross claims against defendant Premier Electric, Inc. and their claims against third-party defendant (Godsell) for common-law and contractual indemnification and breach of contract for failure to procure insurance, and denied their motion for leave to amend Comscore's answer to assert a cross claim for contractual indemnification against Premier, unanimously modified, on the law, to deny the motion as to the Labor Law § 200 and common-law negligence claims as against ACC and to grant the motion for leave to amend Comscore's answer to assert a cross claim against Premier for contractual indemnification, and otherwise affirmed, without costs.

The Labor Law § 241(6) claim premised on Industrial Code (12 NYCRR) § 23–1.7(e)(2) was correctly dismissed since the loop of electrical wire on which plaintiff tripped was an integral and permanent part of the construction (see e.g. O'Sullivan v. IDI Constr. Co., Inc., 28 A.D.3d 225, 225–226, 813 N.Y.S.2d 373 [1st Dept. 2006], affd 7 N.Y.3d 805, 822 N.Y.S.2d 745, 855 N.E.2d 1159 [2006];  Isola v. JWP Forest Elec. Corp., 267 A.D.2d 157, 158, ––– N.Y.S.2d –––– [1st Dept. 1999]).

However, the Labor Law § 200 and common-law claims should not be dismissed as against general contractor ACC. To the extent plaintiff argues that his injury arose from the means and methods of the work being performed, issues of fact exist as to whether ACC controlled the means and methods of the injury-producing work so as to impose liability on ACC under this theory (see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352–353, 670 N.Y.S.2d 816, 693 N.E.2d 1068 [1998];  Perrino v. Entergy Nuclear Indian Point 3, LLC, 48 A.D.3d 229, 850 N.Y.S.2d 428 [1st Dept. 2008]).  There is evidence that ACC's construction superintendent coordinated the work areas, which included checking the rooms in the morning before work began to ensure that they were ready for trades to work there.  Further, while the superintendent testified that Godsell was not to work in the room where the accident occurred until the Premier electricians had finished their work there, there is also testimony in the record that he had directed plaintiff, Godsell's general foreman, to get Godsell's work in that room done.

Because issues of fact exist as to its negligence, ACC is not entitled to summary judgment on its contractual or common-law indemnification claims against Premier or Godsell (Cackett v. Gladden Props., LLC, 183 A.D.3d 419, 422, 123 N.Y.S.3d 581 [1st Dept. 2020];  Urban v. No. 5 Times Sq. Dev., LLC, 62 A.D.3d 553, 557, 879 N.Y.S.2d 122 [1st Dept. 2009]).  In addition, to the extent Premier's and Godsell's insurance carriers are defending and indemnifying the owner defendants, or are required to do so, the owner defendants’ claims for indemnification against Premier and Godsell are barred by the antisubrogation rule (see North Star Reins. Corp. v. Continental Ins. Co., 82 N.Y.2d 281, 294–295, 604 N.Y.S.2d 510, 624 N.E.2d 647 [1993]).  Similarly, to the extent Premier's insurance carrier has been ordered in a separate action to defend and indemnify the owner defendants, Premier did not breach its obligation to procure insurance.  The owner defendants also failed to establish prima facie that Godsell breached its obligation to procure insurance;  they contend that the insurance procured by its excess insurance carrier did not comport with the requirements of its subcontract, but they failed to submit with their motion papers a copy of the email from the excess carrier on which they rely, and they could not cure this basic evidentiary defect in their reply papers (Migdol v. City of New York, 291 A.D.2d 201, 737 N.Y.S.2d 78 [1st Dept. 2002]).