LINZY v. CHRISTA CONSTRUCTION INC

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

Thomas P. LINZY, Appellant-Respondent, v. CHRISTA CONSTRUCTION, INC., and University of Rochester Eastman Theater, Respondents-Appellants.

Decided: April 25, 1997

Before PINE, J.P., and CALLAHAN, DOERR, BALIO and BOEHM, JJ. Faraci, Lange, Johns, Regan by David A. Johns, Rochester, for Appellant-Respondent. Connors & Corcoran, LLP by Gregg Redmond, Rochester, for Respondents-Appellants.

Supreme Court erred in granting that part of the cross motion of defendants for summary judgment dismissing the complaint seeking damages under sections 200, 240(1) and 241(6) of the Labor Law based upon plaintiff's alleged breach of contract to procure insurance covering defendants as owner and general contractor.   The record establishes that the subcontract agreement requiring such insurance was not in effect on the date of the accident.

 The court further erred in denying plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1).   Plaintiff established that he was injured when he fell from a ladder while working at an elevated work site (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561-562, 606 N.Y.S.2d 127, 626 N.E.2d 912;  Holka v. Mt. Mercy Academy, 221 A.D.2d 949, 950, 634 N.Y.S.2d 310, lv. dismissed 87 N.Y.2d 1055, 644 N.Y.S.2d 147, 666 N.E.2d 1061;  Golda v. Hutchinson Enters., 219 A.D.2d 803, 632 N.Y.S.2d 364;  Ellis v. Hammond & Irving, 217 A.D.2d 923, 629 N.Y.S.2d 889).   Because the duty of the owner and general contractor is absolute, an injured worker is entitled to recover despite the fact that the owner and general contractor exercised no supervision or control of the work being performed and the worker was a self-employed independent contractor (see, Haimes v. New York Tel. Co., 46 N.Y.2d 132, 412 N.Y.S.2d 863, 385 N.E.2d 601;  Crawford v. Leimzider, 100 A.D.2d 568, 569, 473 N.Y.S.2d 498).  Because the subcontract was not in force on the date of the accident, defendants would not be entitled to contractual indemnification.   In addition, because Labor Law § 240(1) creates a nondelegable duty on the part of owners and general contractors to provide scaffolding and other protective devices, defendants are not entitled to common-law indemnification (see, Haimes v. New York Tel. Co., supra).

 We conclude that the court properly denied that part of the cross motion of defendants for judgment by default on their counterclaims.   Plaintiff's new counsel established that the six-day delay in replying to the counterclaims was the result of law office failure and defendants suffered no prejudice as a result of the delay (see, CPLR 2005;  Raphael v. Cohen, 62 N.Y.2d 700, 701, 476 N.Y.S.2d 527, 465 N.E.2d 34;  Yacone v. Ryan Homes, 216 A.D.2d 963, 629 N.Y.S.2d 159).

Thus, we modify the order by denying in part defendants' cross motion for summary judgment, reinstating the complaint and granting plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: