| Ladignon v Lower Manhattan Dev. Corp. |
| 2015 NY Slip Op 04241 |
| Decided on May 19, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on May 19, 2015
Sweeny, J.P., Renwick, Andrias, Moskowitz, Gische, JJ.
100889/10 15150A 590379/10 15150
v
Lower Manhattan Development Corporation, Defendant, Bovis Lend Lease LMB, Inc., Defendant-Appellant-Respondent, R & J Construction Corp., Defendant-Respondent-Appellant, Gramercy Wrecking & Environmental Contractors, Inc., Defendant-Respondent. Bovis Lend Lease LMB, Inc., Third-party Plaintiff-Appellant-Respondent, Paradise Electrical Energy Contractors, Inc., et al., Third-party Defendants-Respondents, R & J Construction Corp., Third Party Defendant-Respondent-Appellant.
Newman, Myers, Kreines, Gross, Harris, P.C., New York (Patrick M. Caruana and Olivia M Gross of counsel), for appellant-respondent.
Law Office Of James J. Toomey, New York (Eric P. Tosca of counsel), for respondent-appellant.
The Perecman Firm, PLLC, New York (Peter D. Rigelhaupt of counsel), for Ladignon respondents.
Lewis Johs Avallone Aviles, LLP, Islandia (Robert A. Lifson of counsel), for Gramercy Wrecking & Environmental Contractors, Inc, respondent.
Milbert Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for Paradise Electrical Energy Contractors, Inc., respondent.
Orders, Supreme Court, New York County (Eileen A. Rakower, J.), entered December 17, 2013, which, insofar as appealed from, granted the motion of defendant Gramercy Wrecking & Environmental Contractors, Inc. (Gramercy) for summary judgment dismissing the complaint and all cross claims and third-party claims against it, denied the motion of defendant Bovis Lend Lease LMB (Bovis) for summary judgment dismissing the complaint as against it and for [*2]summary judgment on its third-party claims, and denied the motion of defendant R & J Construction (R & J) for summary judgment dismissing all cross claims and third-party claims as against it, unanimously affirmed, without costs.
Plaintiff Cesar Ladignon was working as an inspector for the demolition of a building when, while walking down a flight of stairs, he slipped and fell on a broken light bulb and nails that were left in the stairway. He commenced this action against Bovis, the construction manager, and three of the subcontractors, R & J, Gramercy and Paradise Electrical Energy Contractors, alleging, among other things, violations of Labor Law § 200 and
§ 241(6). Bovis commenced a third-party action for indemnification and contribution from the subcontractors.
On the various motions for summary judgment, the court correctly found that there was no evidence that Gramercy, the subcontractor responsible for cleaning up debris, created or had notice of the defective condition of the staircase. Gramercy was responsible for cleaning up the debris on the site either at the end of a subcontractor's project, at the end of a shift, or as directed by Bovis. Plaintiff's accident occurred at approximately 8:45 a.m., and Gramercy had performed its cleaning functions at the end of the previous day and there is no evidence that it ignored a directive to clean. Accordingly, the action and third-party action were properly dismissed as against Gramercy.
There are, however, triable issues concerning whether Bovis may be liable for plaintiff's fall and thus, the court properly declined to dismiss the common-law negligence and Labor Law § 200 and § 241(6) claims as against it. There are triable issues as to constructive notice of the defective condition of the staircase since the record is unclear as to when the staircase was last inspected prior to plaintiff's fall. Moreover, Bovis's argument that there is no viable Labor Law § 241(6) claim, is unavailing. Plaintiff slipped on debris in a work area (see 12 NYCRR 23-1.7[e]), and plaintiff, a demolition inspector, was "within the class of persons that Labor Law § 241(6) was intended to protect" (McNeill v LaSalle Partners, 52 AD3d 407, 409 [1st Dept 2008]).
Furthermore, the record presents triable issues of fact as to whether the electrical (Paradise) and carpentry (R & J) subcontractors may be required to indemnify Bovis or contribute to the payment of plaintiffs' claims. Neither subcontractor has sufficiently demonstrated that the debris upon which plaintiff slipped could not have come from their work (see generally Raquet v Braun, 90 NY2d 177 [1997]; see Mitchell v Fiorini Landscape, 284 AD3d 313, 314-315 [2d Dept 2001]).
We have considered the parties' remaining arguments, and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 19, 2015
CLERK