CAMERON v. Montenay Long Beach Corp., Third-Party Defendant-Appellant.

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

Robert CAMERON, Respondent, et al., Plaintiff, v. CITY OF LONG BEACH, Defendant Third-Party Plaintiff-Appellant, et al., Defendant; Montenay Long Beach Corp., Third-Party Defendant-Appellant.

Decided: September 30, 2002

SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, WILLIAM D. FRIEDMANN and THOMAS A. ADAMS, JJ. Corey E. Klein, Acting Corporation Counsel, Long Beach, NY, for defendant third-party plaintiff-appellant (relying on the brief filed by the third-party defendant-appellant). Lewis, Johs, Avallone, Aviles & Kaufman, Melville, NY, (John M. Denby of counsel), for third-party defendant-appellant. Sacks & Sacks, New York, NY, (Scott N. Singer of counsel), for respondent.

In an action to recover damages for personal injuries, etc., (1) the defendant City of Long Beach appeals, as limited by the brief submitted by the third-party defendant, from so much of a judgment of the Supreme Court, Nassau County (Winick, J., at liability trial;  Franco, J., at damages trial and judgment), entered March 12, 2001, as, upon the granting of the motion of the plaintiff Robert Cameron pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability, and upon a jury verdict on the issue of damages, is in favor of the plaintiff Robert Cameron and against it in the principal sum of $1,042,350, and (2) the third-party defendant separately appeals, as limited by its brief, from so much of the same judgment as is in favor of the plaintiff and against the defendant City of Long Beach and, upon the granting of the motion of the defendant City of Long Beach for indemnification, adjudged that it shall indemnify the defendant City of Long Beach.

ORDERED that the judgment is reversed insofar as appealed from, on the law, the motion of the plaintiff Robert Cameron is denied, and the matter is remitted to the Supreme Court, Nassau County, for a new trial on the issue of liability, and on the issue of damages, if necessary, with costs to abide the event.

The injured plaintiff, Robert Cameron, was employed by the third-party defendant, Montenay Long Beach Corp. (hereinafter Montenay), the operator of a resource recovery plant owned by the defendant City of Long Beach (hereinafter Long Beach).   While repairing a broken water softener, he slipped and fell on a puddle of oil which had leaked from a turbine.   The injured plaintiff and his wife thereafter commenced this action against, among others, Long Beach alleging, inter alia, a violation of Labor Law § 241(6).   Long Beach then commenced a third-party action against Montenay seeking common-law indemnification.   At the close of the evidence, the trial court granted the plaintiffs' motion for judgment as a matter of law on the issue of liability pursuant to Labor Law § 241(6).   We reverse and order a new trial.

In granting a motion for judgment as a matter of law, the trial court must determine that by no rational process could the triers of fact find in favor of the nonmoving party on the evidence presented (see Noyes v. Galen, 267 A.D.2d 365, 700 N.Y.S.2d 73).   In considering such a motion, the evidence must be construed in the light most favorable to the nonmoving party, and the motion should not be granted where the facts are in dispute, where different inferences may be drawn from the evidence, or where the credibility of the witnesses is in question (see Noyes v. Galen, supra;  Ampolini v. Long Is. Light. Co., 186 A.D.2d 772, 589 N.Y.S.2d 76).

Labor Law § 241(6) imposes upon owners and contractors the duty to provide reasonable and adequate protection and safety to persons employed in construction, excavation, and demolition work (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82).   To support a claim under this section, a plaintiff must allege a violation of a specific “concrete” provision of the Industrial Code (id. at 502-505, 601 N.Y.S.2d 49, 618 N.E.2d 82).

In this case, the trial court properly determined that the injured plaintiff, while repairing the water softener, was engaged in “construction work” within the purview of Labor Law § 241(6) (12 NYCRR 23-1.4[b][13];  see Sprague v. Peckham Materials Corp., 240 A.D.2d 392, 658 N.Y.S.2d 97).   However, as the evidence adduced presented an issue of fact as to whether the Industrial Code provision upon which the plaintiffs relied, 12 NYCRR 23-1.7(d), was violated, that issue should have been resolved by a jury.   On the evidence presented, the jury could have drawn conflicting inferences as to whether the conditions at the worksite were reasonable under the circumstances.   Accordingly, the trial court should not have granted the plaintiffs' motion for judgment as a matter of law, and a new trial is required.

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