Anthony DeJesus, et al., Plaintiffs–Appellants–Respondents, v. 888 LLC KBI

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

Anthony DeJesus, et al., Plaintiffs–Appellants–Respondents, v. 888 Seventh Avenue LLC, Defendant–Respondent, R & R Scaffolding, Ltd., Defendant–Respondent–Appellant, KBI Inc., Defendant.

Seventh Avenue LLC, Third–Party Plaintiff–Respondent, v. SMB Windows LLC, Third–Party Defendant–Respondent.

1180 3 888

Decided: February 25, 2014

Sweeny, J.P., Andrias, Moskowitz, DeGrasse, Gische, JJ. Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for appellants-respondents. McGaw, Alventosa & Zajac, Jericho (Dawn C. DeSimone and James K. O'Sullivan of counsel), for respondent-appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York (Adam Kazansky of counsel), for 888 Seventh Avenue LLC, respondent.

Baxter Smith & Shapiro, P.C., White Plains (Sim R. Shapiro of counsel), for SMB Windows LLC, respondent.

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Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered June 12, 2012, which, to the extent appealed from as limited by the briefs, granted defendant 888 Seventh Avenue LLC's motion for summary judgment dismissing the complaint as against it, denied plaintiffs' motion for partial summary judgment on the Labor Law § 240(1) claim, denied defendant R & R Scaffolding, Ltd.'s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against it, granted R & R's motion for summary judgment dismissing 888 Seventh Avenue's cross claims for contribution and common-law indemnification against it, and granted third-party defendant SMB Windows, LLC's motion for summary judgment dismissing the third-party complaint, unanimously modified, on the law, to deny 888 Seventh Avenue's motion as to the Labor Law §§ 240(1) and 200 and common-law negligence claims as against it, to grant plaintiffs' motion as against 888 Seventh Avenue, to grant R & R's motion as to the Labor Law § 200 claim, to deny R & R's motion as to 888 Seventh Avenue's cross claims against it, and to deny SMB's motion, and otherwise affirmed, without costs.

Although plaintiff Anthony DeJesus was not operating the scaffold in his capacity as a window washer at the time of the accident, he was operating it for the caulkers who could not have safely discharged their duties without him.   Since caulking is an activity of the sort enumerated in Labor Law § 240(1) (see Rendino v. City of New York, 83 AD3d 540 [1st Dept 2011];  Kielar v. Metropolitan Museum of Art, 55 AD3d 456 [1st Dept 2008] ), plaintiff is entitled to the same statutory protection as the caulkers, and his Labor Law § 240(1) claim against 888 Seventh Avenue should not be dismissed.   Further, given the evidence that the lanyard and harness provided to plaintiff proved inadequate to shield him from falling through the rail track, plaintiff is entitled to summary judgment on the issue of liability on that claim (see Miglionico v. Bovis Lend Lease, Inc., 47 AD3d 561, 564 [1st Dept 2008] ).

The protections of Labor Law § 241(6) are inapplicable to plaintiff's claims because he was not engaged in construction work at the time of the accident (see Esposito v New York City Indus.   Dev. Agency, 1 NY3d 526 [2003] ).   Similarly, Labor Law § 202 is inapplicable because plaintiff was not engaged in window cleaning at the time of the accident.

The testimony of plaintiff's supervisor that 888 Seventh Avenue's property manager had the authority to direct plaintiff's work raises a triable issue of fact whether 888 Seventh Avenue supervised or controlled plaintiff's work for purposes of the Labor Law § 200 and common-law negligence claims against it (see Rizzuto v. L.A. Wenger Contr.   Co., 91 N.Y.2d 343, 352 [1998];  Giovengo v. P & L Mech., 286 A.D.2d 306 [1st Dept 2001] ).

The record presents a triable issue of fact whether R & R failed to exercise reasonable care in the performance of its duties under the agreement (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 [2002] ).   However, plaintiff conceded that R & R is not liable under Labor Law § 200.

In light of our disposition of the claims against it, 888 Seventh Avenue's cross claims and third-party claims for contribution and common-law indemnification against R & R and SMB should not be dismissed, since there is evidence in the record that supports a finding of proportionate negligence among these parties (see Chevalier v. 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 414 [1st Dept 2011] ).   Moreover, on this record, 888 Seventh Avenue may be entitled to contractual indemnification by SMB

under their Windows Contract.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK