BURTON v. [And Other Third–Party Actions].

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John BURTON, et al., Plaintiffs–Appellants–Respondents, v. CW Equities, LLC, Defendant–Respondent–Appellant, T.F.N. Development Corp. doing business as East Coast Construction Group, Defendant–Respondent. [And Other Third–Party Actions].

Decided: July 17, 2012

MAZZARELLI, J.P., SAXE, MOSKOWITZ, FREEDMAN, MANZANET–DANIELS, JJ. Pollack, Pollack Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellants-respondents. Baxter Smith & Shapiro, P.C., White Plains (Dennis S. Hefferman of counsel), for respondent-appellant. Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for respondent.

Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered October 22, 2010, which, insofar as appealed from as limited by the briefs, denied plaintiffs' motion for summary judgment as to liability on their Labor Law § 240(1) claim, and denied defendant CW Equities, LLC's motion for summary judgment dismissing the complaint as against it and for conditional summary judgment on its cross claim for indemnification against defendant T.F.N. Development Corp., unanimously modified, on the law, to grant plaintiffs' motion and to grant defendant CW Equities' motion with respect to its cross claim, and otherwise affirmed, without costs.

Contrary to defendants' contention, the fact that the concrete walkway from which plaintiff John Burton fell was a permanent structure does not remove it from the coverage of Labor Law § 240(1). The walkway provided access to the rear yard of the building under construction, extending over an approximately 15–foot–deep vaulted area below grade level. However, it had no guard rails or other barriers. Thus, “plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (see Runner v. New York Stock Exch., Inc., 13 NY3d 599, 603 [2009] ).

Since plaintiff's injury did not arise from the method he used to perform his work, but from a dangerous condition of the workplace, it is not dispositive of his Labor Law § 200 claim that CW Equities did not control the work at the building site (see Urban v. No. 5 Times Sq. Dev., LLC, 62 AD3d 553, 555 [2009]; Hernandez v. Columbus Ctr., LLC, 50 AD3d 597, 598 [2008] ). Whether CW Equities had the requisite notice of the dangerous condition is an issue of fact raised by its principal's testimony that he visited the site approximately every other day (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836 [1986] ). Similarly, as to plaintiff's common-law negligence claim, the record presents an issue of fact whether the dangerous condition should have been apparent upon visual inspection (see Urban, 62 AD3d at 555).

Although in his bill of particulars plaintiff did not allege a violation of Industrial Code (12 NYCRR) § 23–1.7(b)(1) as a predicate for his Labor Law § 241(6) claim, he identified it in opposition to CW Equities' motion, and CW Equities claims no prejudice from the late invocation of the provision (see Latchuk v. Port Auth. of N.Y. & N.J., 71 AD3d 560, 560–561 [2010]; Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 A.D.2d 231, 233 [2000] ).

Notwithstanding the above-discussed issues of fact as to negligence on its part, CW Equities should have been granted summary judgment on its claim for indemnification, since the indemnification provision at issue does not require T.F.N. to indemnify CW Equities for CW Equities' own negligence (see Brooks v. Judlau Contr., Inc., 11 NY3d 204 [2008]; Hughey v. RHM–88, LLC, 77 AD3d 520, 522–523 [2010]; Minorczyk v. Dormitory Auth. of the State of N.Y., 74 AD3d 675, 675–676 [2010] ).

The Decision and Order of this Court entered herein on February 14, 2012 is hereby recalled and vacated (see M–1246 decided simultaneously herewith).