Opinion
05-25-2017
William RUBINO, et al., Plaintiffs–Respondents, v. 330 MADISON COMPANY, LLC, et al., Defendants–Appellants, W5 Group LLC doing business as Waldorf Demolition, et al., Defendants–Respondents. Madison Company, LLC, et al., Third–Party Plaintiffs–Appellants, v. Waldorf Demolition, et al., Third–Party Defendants–Respondents, Corporate Electric Group, Inc., Third–Party Defendant. [And Other Third–Party Actions].
Barry, McTiernan & Moore LLC, New York (Laurel A. Wedinger of counsel), for appellants. Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for William Rubino and Nicole Rubino, respondents. O'Connor Redd, LLP, Port Chester (Joseph M. Cianflone of counsel), for Michael Mazzeo Electric Corp., respondent. Law Office of Keith J. Conway, Melville (Patricia K. Rech of counsel), for W5 Group LLC, respondent.
Barry, McTiernan & Moore LLC, New York (Laurel A. Wedinger of counsel), for appellants.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for William Rubino and Nicole Rubino, respondents.
O'Connor Redd, LLP, Port Chester (Joseph M. Cianflone of counsel), for Michael Mazzeo Electric Corp., respondent.
Law Office of Keith J. Conway, Melville (Patricia K. Rech of counsel), for W5 Group LLC, respondent.
TOM, J.P., SWEENY, RICHTER, KAPNICK, WEBBER, JJ.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered July 18, 2016, which, insofar as appealed from as limited by the briefs, granted plaintiffs' motion for partial summary judgment on the Labor Law § 241(6) claim as against defendants 330 Madison Company, LLC and Tishman Construction Corp. (collectively appellants), granted the motion of defendant Michael Mazzeo Electric Corp. (Mazzeo) for summary judgment dismissing appellants' contractual and common-law indemnification and contribution claims against it, and granted the cross motion of defendant W5 Group LLC d/b/a Waldorf Demolition (Waldorf) for summary judgment dismissing appellants' contractual indemnification claim against it, unanimously modified, on the law, to deny Waldorf's motion, and otherwise affirmed, without costs.
The court properly granted plaintiffs' motion for partial summary judgment on the Labor Law § 241(6) claim as against appellants. It is undisputed that violations of Industrial Code (12 NYCRR) § 23–1.13(b)(3) and (4) proximately caused the injuries sustained by plaintiff when a metal part of his safety harness contacted a live electrical wire, known as a BX cable, which was hanging down from a drop ceiling of a building under renovation. Appellants, as owner and general contractor, may be held liable for violation of those provisions, even though they impose obligations on the employer, since they have a nondelegable duty to provide adequate safety protections (see Rivera v. Ambassador Fuel & Oil Burner Corp., 45 A.D.3d 275, 845 N.Y.S.2d 25 [1st Dept.2007] ; Johnson v. Ebidenergy, Inc., 60 A.D.3d 1419, 875 N.Y.S.2d 677 [4th Dept.2009] ). Appellants fail to point to any evidence that would support a finding that plaintiff was comparatively negligent, since he was acting pursuant to his foreman's instructions and neither knew nor should have known that the cable was electrified, in the absence of any warnings, caution tape, or other such indications that workers should avoid the area (cf. Snowden v. New York City Tr. Auth., 248 A.D.2d 235, 237, 670 N.Y.S.2d 32 [1st Dept.1998] ). Appellants' assertion that they lacked notice of the presence of the exposed, electrified cable is irrelevant, "[s]ince an owner or general contractor's vicarious liability under section 241(6) is not dependent on its personal capability to prevent or cure a dangerous condition" (see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 35, 670 N.Y.S.2d 816, 693 N.E.2d 10682 [1998] ). The court properly dismissed appellants' contractual and common-law indemnification and contribution claims against Mazzeo. Appellants' theory that Mazzeo negligently installed the wiring in the area of the accident more than one year before the accident occurred is speculative, in light of other work performed by other subcontractors in the period following the completion of Mazzeo's work (see Bernstein v. City of New York, 69 N.Y.2d 1020, 1021–1022, 517 N.Y.S.2d 908, 511 N.E.2d 52 [1987] ; see also Beckford v. New York City Hous. Auth., 84 A.D.3d 441, 922 N.Y.S.2d 72 [1st Dept.2011] ; cf. Fiorentino v. Atlas Park LLC, 95 A.D.3d 424, 427, 944 N.Y.S.2d 60 [1st Dept.2012] ).
The court should have denied as untimely Waldorf's cross motion for summary judgment dismissing appellants' contractual indemnification claim against it without considering the merits, since the motion was filed after the applicable deadline and Waldorf failed to show good cause for the delay (see Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004] ). Waldorf's purported cross motion against appellants, nonmoving parties, was not a true cross motion (see Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 87–88, 978 N.Y.S.2d 13 [1st Dept.2013] ), and did not merely raise issues "nearly identical" to those raised by plaintiffs and Mazzeo in their timely motions (Maggio v. 24 W. 57 APF, LLC, 134 A.D.3d 621, 628, 24 N.Y.S.3d 1 [1st Dept.2015] [internal quotation marks omitted] ).