Opinion
No. 16191 Index No. 24263/13 Case No. 2021-03690
06-23-2022
Edwin Saul Corleto, et al., Plaintiffs-Respondents, v. Henry Restoration Ltd., Defendant-Appellant, Euclid Hall Housing Development Fund Company Inc., Defendant-Respondent. Henry Restoration Ltd, Third-Party Plaintiff-Appellant, v. BSK Restoration Corporation, Third-Party Defendant.
Gorton & Gorton LLP, Garden City (Thomas P. Gorton of counsel), for appellant. Ginarte Gallardo Gonzalez & Winograd LLP, New York (Timothy Norton of counsel), for Edwin Saul Corleto and Alba Corleto, respondents. Marshall, Conway, Bradley, Gollub & Weissman P.C., New York (Lauren R. Turkel of counsel), for Euclid Hall Housing Development Fund Company Inc., respondent.
Gorton & Gorton LLP, Garden City (Thomas P. Gorton of counsel), for appellant.
Ginarte Gallardo Gonzalez & Winograd LLP, New York (Timothy Norton of counsel), for Edwin Saul Corleto and Alba Corleto, respondents.
Marshall, Conway, Bradley, Gollub & Weissman P.C., New York (Lauren R. Turkel of counsel), for Euclid Hall Housing Development Fund Company Inc., respondent.
Before: Manzanet-Daniels, J.P., Webber, Gesmer, Scarpulla, Shulman, JJ.
Order, Supreme Court, Bronx County (Adrian Armstrong, J.), entered August 24, 2021, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims, and granted defendant Euclid Hall Housing Development Fund Company Inc.'s (Euclid) cross motion for summary judgment on its cross claims against defendant Henry Restoration, Ltd. (Henry) for contractual indemnification and conditional common law indemnification, unanimously affirmed, without costs.
Plaintiff's deposition testimony and expert evidence established prima facie that defendants violated Labor Law § 240(1) and that the violation proximately caused his injuries, where plaintiff fell from a height, through an unguarded side of a scaffold, after he and his coworker attempted to manually move the scaffold along a building's exterior faÇade (see Ordonez v One City Block, LLC, 191 A.D.3d 412 [1st Dept 2021]). In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident. Defendants' reliance upon testimony of the subcontractor's president (plaintiff's employer) that plaintiff's coworkers informed him that plaintiff was in a rush and might have deliberately jumped from the platform, constituted out-of-court, nonprobative hearsay statements, and plaintiff's statement purportedly made to the subcontractor's president at the hospital is too vague to qualify as an admission against interest. In light of the grant of summary judgment to plaintiff on Labor Law § 240(1), the issue of Labor Law § 241(6) is academic (see Jerez v Tishman Constr. Corp., 118 A.D.3d 617 [1st Dept 2014]).
Euclid's cross claim for contractual indemnification was fully supported by the indemnification provision in the agreement Euclid, as project owner, entered into with Henry, as the general contractor, on the project. The indemnity provision's broad language required Henry to indemnify Euclid for any liability arising from Henry's negligence or that of its subcontractors, including BSK (plaintiff's employer), and no evidence was offered to indicate Euclid was in any way responsible for the accident (see Brooks v Judlau Contr., Inc., 11 N.Y.3d 204, 210 [2008]; Correia v Professional Data Mgt., Inc., 259 A.D.2d 60, 64 [1st Dept 1999]). In view of the foregoing, Euclid's cross-claim against Henry for common-law indemnification is academic (see Wilk v ColumbiaUniv., 150 A.D.3d 502, 503 [1st Dept 2017]; McGurk v Turner Constr. Co., 127 A.D.2d 526, 529 [1st Dept 1987]).