WELSH v. Bast Hatfield Inc., Third-Party Defendant-Appellant. (1999)

Appeal from an order of the Supreme Court (Keegan, J.), entered March 30, 1998 in Albany County, which, inter alia, partially denied a cross motion by certain defendants for summary judgment dismissing the complaint against them.

Third-party defendant, Bast Hatfield Inc. (hereinafter Hatfield), was hired by defendants Evergreen Memorial Park Association Inc. and Schenectady Memorial Park Association Inc. (hereinafter collectively referred to as defendants) to construct a mausoleum in Schenectady Memorial Park located in the Town of Rotterdam, Schenectady County.   On December 1, 1989, plaintiff, a concrete mason and employee of Hatfield, sustained injuries while working with wet concrete that was being poured during construction of the mausoleum.   Plaintiff thereafter commenced this action against, among others, defendants alleging violations of Labor Law § 240(1), § 241(6), § 200 and common-law negligence.   Defendants, in turn, commenced a third-party action against Hatfield for, inter alia, indemnification.   Thereafter, Hatfield moved for summary judgment dismissing the third-party complaint and defendants cross-moved for summary judgment dismissing plaintiff's complaint against them.   Defendants sought, in the alternative, judgment on their cause of action seeking indemnification.   Plaintiff opposed the cross motion insofar as it sought summary judgment in regard to his Labor Law § 241(6) cause of action but consented to dismissal of the Labor Law § 240(1) and § 200 causes of action.

Supreme Court denied defendants' cross motion with respect to plaintiff's Labor Law § 241(6) cause of action but dismissed plaintiff's complaint in all other respects.   With regard to defendants' motion for judgment on the claim of indemnification, the court reserved decision until trial of plaintiff's Labor Law § 241(6) cause of action.   Defendants ¹ and Hatfield appeal.

 Initially, Hatfield maintains that plaintiff does not have a viable Labor Law § 241(6) cause of action because plaintiff failed to demonstrate a violation of an applicable regulation of the Industrial Code. We disagree.   It is axiomatic that in order for plaintiff to assert a viable Labor Law § 241(6) claim, he must allege a violation of a regulation setting forth a specific and concrete standard of conduct governing his working conditions (see, e.g., Stairs v. State St. Assocs., 206 A.D.2d 817, 818, 615 N.Y.S.2d 478).   Here, plaintiff alleged a violation of 12 NYCRR 23-1.7(h), which provides that “[a]ll corrosive substances and chemicals shall be so stored and used as not to endanger any person.   Protective equipment for the use of such corrosive substances and chemicals shall be provided by the employer”.   Additionally, plaintiff alleged a violation of 12 NYCRR 23-1.8(c)(4), which mandates that appropriate protective equipment be provided where an employee is required to use or handle corrosive substances.

The record reflects that Hatfield provided rubber boots for plaintiff's use on the day in question, which extended to the top of his shin.   Plaintiff asserts that said boots were inadequate to protect him from the corrosive effects of the concrete in that he was required to kneel in the substance while performing his work.   Accordingly, he opted to use his own “hip boots” to do the work.   Finally, plaintiff submitted the affidavit of an expert who opined that wet concrete is a corrosive substance capable of causing chemical burns.   Under the circumstances, we find that plaintiff has set forth sufficient evidence in admissible form to raise a question of fact with respect to whether Schenectady Memorial breached a nondelegable duty owed to plaintiff by reason of Hatfield's failure to comply with the mandate of Labor Law § 241(6) and the cited regulations.

 Our further review of the record leads to the ineluctable conclusion that Supreme Court erred in failing to grant Schenectady Memorial summary judgment on its claim for common-law indemnification.   In an affidavit submitted as part of the motion papers, Hatfield's supervisor, Michael Dickson, averred that Hatfield was the sole supervisor of plaintiff's work and that Schenectady Memorial did not supervise plaintiff's work, nor did it oversee the concrete work.   Additionally, Schenectady Memorial submitted the affidavit of its general manager who averred that Hatfield had agreed to be responsible for supervising all aspects of the project and that Schenectady Memorial neither had contact with nor supervised any of the work being performed.   Accordingly, it is clear that any liability that may attach to Schenectady Memorial will be based not upon its wrongdoing but solely upon the negligence of Hatfield, thus presenting the classic case for indemnification (see, Glaser v. M. Fortunoff of Westbury Corp., 71 N.Y.2d 643, 646, 529 N.Y.S.2d 59, 524 N.E.2d 413).

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as reserved decision on the cross motion by defendant Schenectady Memorial Park Association Inc. for indemnification;  cross motion granted to that extent;  and, as so modified, affirmed.

FOOTNOTES

1.   Although defendants filed a joint notice of appeal, plaintiff apparently consented to dismissal of the complaint against Evergreen Memorial Park Association Inc. and, indeed, only Schenectady Memorial Park Association Inc. has filed a brief on appeal.

CREW III, J.

MIKOLL, J.P., PETERS, SPAIN and GRAFFEO, JJ., concur.