Opinion
05-04-2017
Steven MANFREDONIA, et al., Plaintiffs–Respondents, 590643/12 v. GATEWAY SCHOOL OF NEW YORK, Defendant–Appellant. Gateway School of New York, Third–Party Plaintiff–Respondent, v. Kaback Enterprises, Inc., Third–Party Defendant–Appellant–Respondent.
McGaw, Alventosa & Zajac, Jericho (Ross P. Masler of counsel), for Kaback Enterprises, Inc., appellant-respondent. Cornell Grace, P.C., New York (Amy L. Schaefer of counsel), for Gateway School of New York, appellant/respondent. Hach & Rose LLP, New York (Robert F. Garnsey of counsel), for respondents.
McGaw, Alventosa & Zajac, Jericho (Ross P. Masler of counsel), for Kaback Enterprises, Inc., appellant-respondent.
Cornell Grace, P.C., New York (Amy L. Schaefer of counsel), for Gateway School of New York, appellant/respondent.
Hach & Rose LLP, New York (Robert F. Garnsey of counsel), for respondents.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered May 23, 2016, which, insofar as appealed from as limited by the briefs, denied the motions of Gateway School of New York (Gateway) and Kaback Enterprises, Inc. (Kaback) for summary judgment dismissing plaintiffs' cause of action under Labor Law § 240(1), and denied the motion of Kaback seeking dismissal of Gateway's third-party contractual indemnity claim against it, unanimously modified, on the law, to the extent of dismissing the third-party contractual indemnity claim, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of Kaback dismissing the third-party complaint.
Gateway and Kaback failed to establish entitlement to judgment as a matter of law on the Labor Law § 240(1) claim.
Although there is evidence showing that plaintiff Steven Manfredonia, a Kaback employee, in violation of Kaback's safety manual, improperly stood on the top cap of a six-foot A–frame ladder to reach his work,(see e.g. Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 814 N.Y.S.2d 589, 847 N.E.2d 1162 [2006] ), there is also evidence supporting plaintiff's claim that his fall was caused by the ladder's side hinge breaking and the ladder collapsing, and not the method in which he used the device (see Lizama v. 1801 Univ. Assoc., LLC, 100 A.D.3d 497, 954 N.Y.S.2d 58 [1st Dept.2012] ). Thus it cannot be said as a matter of law that plaintiff was the sole proximate cause of the accident (see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ).
The court erred, however, in finding that questions of fact precluded dismissal of Gateway's contractual indemnity claim against Kaback. The contract does not express the type of clear and unmistakable manifestation of intent to indemnify that is required (see Hooper Assoc. v. AGS Computers, Inc., 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989] ; Cordeiro v. TS Midtown Holdings, LLC, 87 A.D.3d 904, 907, 931 N.Y.S.2d 41 [1st Dept2011] ).
RICHTER, J.P., ANDRIAS, MOSKOWITZ, FEINMAN, KAPNICK, JJ., concur.