HENNARD v. BOYCE LLC

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Supreme Court, Appellate Division, Fourth Department, New York.

Andrew HENNARD and Cheryl Hennard, Plaintiffs-Appellants, v. Herbert BOYCE, Herb Boyce Grading Co., Inc., and Keating Boulevard Associates, LLC, Defendants-Respondents.

Keating Boulevard Associates, LLC, Third-Party Plaintiff-Appellant, v. Javen Construction Co., Inc., Third-Party Defendant-Respondent.

Decided: April 30, 2004

PRESENT:  WISNER, J.P., HURLBUTT, SCUDDER, KEHOE, AND GORSKI, JJ. Law Offices of Herschel Gelber, LLC, Williamsville (Joseph G. Krenitsky of Counsel), for Plaintiffs-Appellants. Connors & Corcoran, LLP, Rochester (Heather V. Byrne of Counsel), for Defendant-Respondent and Third-Party Plaintiff-Appellant. Law Office of Charles G. Di Pasquale, Buffalo (John R. Federice of Counsel), for Defendants-Respondents Herbert Boyce and Herb Boyce Grading Co., Inc. Martin & Iati LLP, Rochester (Janice M. Iati of Counsel), for Third-Party Defendant-Respondent.

Plaintiffs commenced this action to recover for personal injuries sustained by Andrew Hennard (plaintiff) at a construction site.   The amended complaint names as defendants Keating Boulevard Associates, LLC (Keating), the owner of the site, and Herbert Boyce and Herb Boyce Grading Co., Inc. (Boyce Grading), an excavation subcontractor (collectively, Boyce defendants).   The amended complaint states a single cause of action alleging a violation of Labor Law §§ 200 and 241(6).   Keating impleaded Javen Construction Co., Inc., the general contractor and plaintiff's employer, seeking contractual indemnification.

Supreme Court properly granted that part of the cross motion of Keating for summary judgment dismissing the amended complaint and cross claims against it.   The court likewise properly granted that part of the cross motion of the Boyce defendants for summary judgment dismissing the section 241(6) claim against them.   With regard to the Labor Law § 241(6) claim, we conclude that the regulations relied upon by plaintiff have no application to the manner in which plaintiff allegedly sustained his injury (see Perillo v. Pleasant View Assoc., 292 A.D.2d 773, 774, 739 N.Y.S.2d 504 [12 NYCRR 23-1.7(d) ];   Magnuson v. Syosset Community Hosp., 283 A.D.2d 404, 405, 725 N.Y.S.2d 55 [12 NYCRR 23-4.2(a) ];  Waszak v. State of New York, 275 A.D.2d 916, 917, 713 N.Y.S.2d 397 [12 NYCRR 23-1.23(a) ];  Sebring v. Wheatfield Props. Co., 255 A.D.2d 927, 929, 680 N.Y.S.2d 383 [same];  Gielow v. Rosa Coplon Home, 251 A.D.2d 970, 971, 674 N.Y.S.2d 551, lv. dismissed in part and denied in part 92 N.Y.2d 1042, 685 N.Y.S.2d 416, 708 N.E.2d 172, rearg. denied 93 N.Y.2d 889, 689 N.Y.S.2d 431, 711 N.E.2d 645 [12 NYCRR 23-1.7(d) and (f) ] ).

 With respect to the issue of Keating's liability under Labor Law § 200, we conclude that Keating sustained its burden of demonstrating that it lacked control over the general condition of the premises and neither created nor had actual or constructive notice of any allegedly dangerous condition thereof, and we further conclude that plaintiff failed to raise a triable issue of fact (see Schultz v. Iwachiw, 284 A.D.2d 980, 981, 725 N.Y.S.2d 511, lv. dismissed in part and denied in part 97 N.Y.2d 625, 735 N.Y.S.2d 485, 760 N.E.2d 1280;  cf. Perry v. City of Syracuse Indus. Dev. Agency, 283 A.D.2d 1017, 726 N.Y.S.2d 311).

 We conclude, however, that the court erred in granting that part of the cross motion of the Boyce defendants for summary judgment dismissing the Labor Law § 200 claim against them.   The Boyce defendants failed to establish as a matter of law that they did not exercise any supervisory control over the general condition of the premises and neither created nor had actual or constructive notice of any allegedly dangerous condition of those premises (see Perry, 283 A.D.2d at 1017, 726 N.Y.S.2d 311;  Skinner v. Oneida-Herkimer Solid Waste Mgt. Auth., 275 A.D.2d 890, 891, 713 N.Y.S.2d 794).   We therefore modify the order by denying the cross motion of the Boyce defendants in part and reinstating the Labor Law § 200 claim against them.

 We further modify the order by denying Keating's cross motion insofar as it seeks a nonconditional order of summary judgment on liability on the third-party complaint.   The court erred in treating that part of Keating's cross motion as moot.   The claim of Keating for contractual indemnification is viable, notwithstanding the dismissal of the amended complaint against it, insofar as Javen may be contractually obligated to indemnify Keating for attorneys' fees and other litigation costs incurred by Keating in defending the action thus far.   Nevertheless, the indemnification obligation is triggered only in the event of a finding of negligence on the part of Javen, the contractor, or Boyce Grading, the subcontractor, and “[t]here is no basis in the record to find such negligence as a matter of law” (Colyer v. K Mart Corp., 273 A.D.2d 809, 810, 709 N.Y.S.2d 758;  see Brickel v. Buffalo Mun. Hous. Auth., 280 A.D.2d 985, 720 N.Y.S.2d 671;  Malecki v. Wal-Mart Stores, 222 A.D.2d 1010, 1011, 635 N.Y.S.2d 888).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the cross motion of defendants Herbert Boyce and Herb Boyce Grading Co., Inc. in part, reinstating the Labor Law § 200 claim against them, and denying that part of the cross motion of defendant-third-party plaintiff with respect to the third-party complaint and as modified the order is affirmed without costs.

MEMORANDUM: