PINEDA v. Glenn Frank Woo, etc., et al., Third-Party Defendants-Respondents. (2002)

In an action to recover damages for personal injuries, (1) the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Milano, J.), dated October 27, 2000, as denied that branch of his cross motion which was for summary judgment against the defendants third-party plaintiffs on the issue of liability under Labor Law § 240(1) and granted those branches of the cross motion of the defendants third-party plaintiffs which were for summary judgment dismissing the complaint insofar as asserted against them, and (2) the defendants third-party plaintiffs separately appeal, as limited by their brief, from so much of the same order as denied that branch of their cross motion which was for summary judgment on the third-party complaint, or, in the alternative, for leave to amend the third-party complaint to assert a cause of action for contractual indemnification, and granted the third-party defendants' motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is modified, on the law and as a matter of discretion, by (1) deleting the provision thereof denying that branch of the plaintiff's cross motion which was for summary judgment against the defendants third-party plaintiffs on the issue of liability under Labor Law § 240(1), and substituting therefor a provision granting that branch of the cross motion, (2) deleting the provision thereof granting that branch of the cross motion of the defendants third-party plaintiffs which was for summary judgment dismissing the cause of action pursuant to Labor Law § 240(1) insofar as asserted against them, and substituting therefor a provision denying that branch of the cross motion, (3) deleting the provision thereof denying that branch of the cross motion of the defendants third-party plaintiffs which was for leave to amend the third-party complaint to assert a cause of action for contractual indemnification, and substituting therefor a provision granting that branch of the cross motion, and (4) deleting the provision thereof granting the third-party defendants' motion for summary judgment dismissing the third-party complaint in its entirety and substituting therefor a provision granting that motion only to the extent of dismissing the third-party causes of action for common-law indemnification and contribution;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff was painting the living room of a cooperative apartment at the request of his employer, Glenn Frank Woo, d/b/a Woo Management (hereinafter collectively Woo), when the ladder on which he was standing collapsed, causing him to fall and sustain injuries.   The apartment was in a cooperative building owned by 79 Barrow Street Owners Corporation, and managed by Eichner Rudd Management Associates Limited (hereinafter collectively the defendants).   Woo, the proprietary lessee of the apartment, did not obtain consent from the defendants prior to beginning work in the apartment, and he did not notify them of the work.

The plaintiff subsequently commenced this action against the defendants alleging, inter alia, that they were owners under § 240(1) of the Labor Law and thus liable to him for his injuries.   The defendants commenced a third-party action against Woo for common-law indemnification and contribution.

After depositions were held, Woo moved for summary judgment dismissing the third-party complaint, contending that the plaintiff, his employee, did not suffer a grave injury within the meaning of Workers' Compensation Law § 11, and thus he could not be held liable for either contribution or common-law indemnification.   The defendants cross-moved for summary judgment dismissing the complaint insofar as asserted against them on the grounds that they were not owners, or, in the alternative, for summary judgment on their third-party complaint seeking common-law indemnification and contribution from Woo or for leave to amend their third-party complaint to assert a cause of action for contractual indemnification.   The plaintiff cross-moved for summary judgment on the issue of liability under Labor Law §§ 200, 240(1), and 241(6), and common-law negligence.   The Supreme Court granted that branch of the defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against them, as well as Woo's motion for summary judgment dismissing the third-party complaint.   The Supreme Court denied the plaintiff's cross motion for summary judgment.   We modify.

 As the fee owner and the owner's agent, the defendants are absolutely liable under Labor Law § 240(1) once the plaintiff established that a violation thereof occurred on their premises, and that it proximately caused his injuries (see Coleman v. City of New York, 91 N.Y.2d 821, 822-823, 666 N.Y.S.2d 553, 689 N.E.2d 523;  Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 558, 606 N.Y.S.2d 127, 626 N.E.2d 912;  Otero v. Cablevision of New York, 297 A.D.2d 632, 747 N.Y.S.2d 46 [decided herewith];  cf.  Bosch v. 229 W. 97 Realty Assocs., 279 A.D.2d 373, 719 N.Y.S.2d 564;  Webb v. 444 Cent. Park Owners, 248 A.D.2d 175, 669 N.Y.S.2d 574;  Brown v. Christopher St. Owners Corp., 211 A.D.2d 441, 442, 620 N.Y.S.2d 374, affd. on other grounds 87 N.Y.2d 938, 641 N.Y.S.2d 221, 663 N.E.2d 1251).   The plaintiff's unrebutted proof showed that he fell when the ladder he was standing on collapsed.   There is also no question that this accident occurred in the apartment owned by the defendants.   Thus, the plaintiff was entitled to summary judgment against the defendants on the issue of liability under Labor Law § 240(1) (see Scotti v. Federation Dev. Corp., 289 A.D.2d 322, 734 N.Y.S.2d 573).   However, the Supreme Court properly granted those branches of the defendants' cross motion which were for summary judgment dismissing the causes of action under Labor Law §§ 200 and 241(6), and for common-law negligence, insofar as asserted against them since, in response to the showing of the defendants that they did not direct or control his work, the plaintiff failed raise a triable issue of fact (see Schuler v. Kings Plaza Shopping Center and Marina, 294 A.D.2d 556, 743 N.Y.S.2d 141).

 In response to Woo's showing that the plaintiff did not sustain a grave injury as defined by Workers' Compensation Law § 11, the defendants failed to raise a triable issue of fact.   Thus, Woo's motion for summary judgment dismissing the third-party causes of action for common-law indemnification and contribution was properly granted.   However, in the exercise of our discretion, we find a sufficient basis in the record to grant that branch of the defendants' cross motion which was for leave to amend their third-party complaint to assert a cause of action for contractual indemnification (see CPLR 3025[b] ).

The plaintiff's remaining contentions are either without merit or need not be reached in light of this determination.