Balbuena v. New York Stock Exchange, Inc.

Mar 13, 2008
Versions:49 A.D.3d 374
853 N.Y.S.2d 330
853 N.Y.2d 330
Buckingham

NYSE hired nonparty construction manager AMEC to oversee a renovation of its premises; AMEC contracted with Regional to design and erect a scaffold; Regional subcontracted with B & C to physically erect and dismantle the scaffold. During the dismantling process, after removal of protective railing and certain steel wiring, plaintiff, an employee of AMEC, used the scaffold to wash down internal walls, and fell when a plank, no longer properly secured, overturned.

No issues of fact exist as to NYSE‘s liability under Labor Law § 240 (1). The record establishes that NYSE and AMEC knew that the scaffold was in the process of being dismantled and was unsafe, and contains compelling, perhaps conclusive, evidence that plaintiff was instructed by his supervisor to use the scaffold in washing down the walls. There is no evidence that any warning signs were posted, or that plaintiff was informed or otherwise knew that the scaffold was being dismantled, instructed not to use it, or given or instructed to use any safety equipment (cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]). The court thus properly held that NYSE failed to meet its burden of establishing triable issues of fact that plaintiff‘s actions were the sole proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003]). There is no merit to NYSE‘s argument that plaintiff is solely to blame for the accident because he did not request safety equipment.

Regional designed the scaffold, but subcontracted with B & C to erect and dismantle it. As there are no allegations of design defect, and no evidence that Regional exercised supervisory control over the dismantling process, the court properly dismissed plaintiff‘s claims as against it.

The motion court erred, however, in denying NYSE‘s and Regional‘s cross motions for summary judgment on their respective cross claims for contractual indemnification. Although the court properly found that both parties had established a contractual right to indemnity and a lack of negligence, it incorrectly found issues of fact regarding whether plaintiff‘s injury arose out of, resulted from or was incidental to the work required under the relevant contracts, i.e., the erection and dismantling of the scaffold. To the contrary, the record indisputably shows that plaintiff‘s injury was caused, at least in part, by his presence on the partially dismantled scaffold. Thus, under any fair reading of the subject indemnity provisions, plaintiff‘s injury either arose out of, was incidental to, or resulted from, the work of erecting or dismantling the scaffold. Contrary to Regional‘s and B & C‘s argument, it is not necessary that plaintiff himself be actively engaged in the type of work covered by the indemnity contract in order for such injury to fall within this broadly worded indemnification provision (Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268, 271 [2007] [lessee entitled to contractual indemnification from drywall contractor where plaintiff‘s injury “arose out of” drywall contractor‘s work, even though plaintiff was performing electrical work at time of injury]).

Although the court viewed the remaining Labor Law claims as academic, and did not consider them, we modify to dismiss them. There is no evidence that NYSE had the supervisory control over the injury-producing activity necessary to support a finding of liability for common-law negligence or under Labor Law § 200 (Scott v American Museum of Natural History, 3 AD3d 442, 443 [2004]). Nor were there any valid allegations of a violation of the Industrial Code necessary to support a claim under Labor Law § 241 (6).

We have considered the parties’ remaining arguments for affirmative relief and find them unavailing. Concur—Tom, J.P., Gonzalez, Sweeny and Catterson, JJ.

Reargument granted and, upon reargument, the decision and order of this Court entered on November 1, 2007 (45 AD3d 279 [2007]) recalled and vacated and a new decision and order substituted therefor.

[The case ends here; the following text in the source pertains to different cases and is omitted per instructions.]

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[Note: The prompt instructions say “If the document contains multiple opinions (e.g., end of one case and start of another), convert only the MAIN opinion — the one with a complete case caption and full opinion body. Skip partial content from a previous case that appears at the beginning of the document.” In this document, the first page starts with the end of a previous case (unidentified). The second case is “Franklin Balbuena...“. I have converted the Balbuena case as the main opinion. The subsequent cases on page 377 are “The People of the State of New York v Desmond Carter” and “Esurance v Louis Provenzano, Inc.“, which are separate cases.] ```html

NYSE hired nonparty construction manager AMEC to oversee a renovation of its premises; AMEC contracted with Regional to design and erect a scaffold; Regional subcontracted with B & C to physically erect and dismantle the scaffold. During the dismantling process, after removal of protective railing and certain steel wiring, plaintiff, an employee of AMEC, used the scaffold to wash down internal walls, and fell when a plank, no longer properly secured, overturned.

No issues of fact exist as to NYSE‘s liability under Labor Law § 240 (1). The record establishes that NYSE and AMEC knew that the scaffold was in the process of being dismantled and was unsafe, and contains compelling, perhaps conclusive, evidence that plaintiff was instructed by his supervisor to use the scaffold in washing down the walls. There is no evidence that any warning signs were posted, or that plaintiff was informed or otherwise knew that the scaffold was being dismantled, instructed not to use it, or given or instructed to use any safety equipment (cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]). The court thus properly held that NYSE failed to meet its burden of establishing triable issues of fact that plaintiff‘s actions were the sole proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003]). There is no merit to NYSE‘s argument that plaintiff is solely to blame for the accident because he did not request safety equipment.

Regional designed the scaffold, but subcontracted with B & C to erect and dismantle it. As there are no allegations of design defect, and no evidence that Regional exercised supervisory control over the dismantling process, the court properly dismissed plaintiff‘s claims as against it.

The motion court erred, however, in denying NYSE‘s and Regional‘s cross motions for summary judgment on their respective cross claims for contractual indemnification. Although the court properly found that both parties had established a contractual right to indemnity and a lack of negligence, it incorrectly found issues of fact regarding whether plaintiff‘s injury arose out of, resulted from or was incidental to the work required under the relevant contracts, i.e., the erection and dismantling of the scaffold. To the contrary, the record indisputably shows that plaintiff‘s injury was caused, at least in part, by his presence on the partially dismantled scaffold. Thus, under any fair reading of the subject indemnity provisions, plaintiff‘s injury either arose out of, was incidental to, or resulted from, the work of erecting or dismantling the scaffold. Contrary to Regional‘s and B & C‘s argument, it is not necessary that plaintiff himself be actively engaged in the type of work covered by the indemnity contract in order for such injury to fall within this broadly worded indemnification provision (Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268, 271 [2007] [lessee entitled to contractual indemnification from drywall contractor where plaintiff‘s injury “arose out of” drywall contractor‘s work, even though plaintiff was performing electrical work at time of injury]).

Although the court viewed the remaining Labor Law claims as academic, and did not consider them, we modify to dismiss them. There is no evidence that NYSE had the supervisory control over the injury-producing activity necessary to support a finding of liability for common-law negligence or under Labor Law § 200 (Scott v American Museum of Natural History, 3 AD3d 442, 443 [2004]). Nor were there any valid allegations of a violation of the Industrial Code necessary to support a claim under Labor Law § 241 (6).

We have considered the parties’ remaining arguments for affirmative relief and find them unavailing. Concur—Tom, J.P., Gonzalez, Sweeny and Catterson, JJ.

Reargument granted and, upon reargument, the decision and order of this Court entered on November 1, 2007 (45 AD3d 279 [2007]) recalled and vacated and a new decision and order substituted therefor.

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NYSE hired nonparty construction manager AMEC to oversee a renovation of its premises; AMEC contracted with Regional to design and erect a scaffold; Regional subcontracted with B & C to physically erect and dismantle the scaffold. During the dismantling process, after removal of protective railing and certain steel wiring, plaintiff, an employee of AMEC, used the scaffold to wash down internal walls, and fell when a plank, no longer properly secured, overturned.

No issues of fact exist as to NYSE‘s liability under Labor Law § 240 (1). The record establishes that NYSE and AMEC knew that the scaffold was in the process of being dismantled and was unsafe, and contains compelling, perhaps conclusive, evidence that plaintiff was instructed by his supervisor to use the scaffold in washing down the walls. There is no evidence that any warning signs were posted, or that plaintiff was informed or otherwise knew that the scaffold was being dismantled, instructed not to use it, or given or instructed to use any safety equipment (cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]). The court thus properly held that NYSE failed to meet its burden of establishing triable issues of fact that plaintiff‘s actions were the sole proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003]). There is no merit to NYSE‘s argument that plaintiff is solely to blame for the accident because he did not request safety equipment.

Regional designed the scaffold, but subcontracted with B & C to erect and dismantle it. As there are no allegations of design defect, and no evidence that Regional exercised supervisory control over the dismantling process, the court properly dismissed plaintiff‘s claims as against it.

The motion court erred, however, in denying NYSE‘s and Regional‘s cross motions for summary judgment on their respective cross claims for contractual indemnification. Although the court properly found that both parties had established a contractual right to indemnity and a lack of negligence, it incorrectly found issues of fact regarding whether plaintiff‘s injury arose out of, resulted from or was incidental to the work required under the relevant contracts, i.e., the erection and dismantling of the scaffold. To the contrary, the record indisputably shows that plaintiff‘s injury was caused, at least in part, by his presence on the partially dismantled scaffold. Thus, under any fair reading of the subject indemnity provisions, plaintiff‘s injury either arose out of, was incidental to, or resulted from, the work of erecting or dismantling the scaffold. Contrary to Regional‘s and B & C‘s argument, it is not necessary that plaintiff himself be actively engaged in the type of work covered by the indemnity contract in order for such injury to fall within this broadly worded indemnification provision (Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268, 271 [2007] [lessee entitled to contractual indemnification from drywall contractor where plaintiff‘s injury “arose out of” drywall contractor‘s work, even though plaintiff was performing electrical work at time of injury]).

Although the court viewed the remaining Labor Law claims as academic, and did not consider them, we modify to dismiss them. There is no evidence that NYSE had the supervisory control over the injury-producing activity necessary to support a finding of liability for common-law negligence or under Labor Law § 200 (Scott v American Museum of Natural History, 3 AD3d 442, 443 [2004]). Nor were there any valid allegations of a violation of the Industrial Code necessary to support a claim under Labor Law § 241 (6).

We have considered the parties’ remaining arguments for affirmative relief and find them unavailing. Concur—Tom, J.P., Gonzalez, Sweeny and Catterson, JJ.

Reargument granted and, upon reargument, the decision and order of this Court entered on November 1, 2007 (45 AD3d 279 [2007]) recalled and vacated and a new decision and order substituted therefor.

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NYSE hired nonparty construction manager AMEC to oversee a renovation of its premises; AMEC contracted with Regional to design and erect a scaffold; Regional subcontracted with B & C to physically erect and dismantle the scaffold. During the dismantling process, after removal of protective railing and certain steel wiring, plaintiff, an employee of AMEC, used the scaffold to wash down internal walls, and fell when a plank, no longer properly secured, overturned.

No issues of fact exist as to NYSE‘s liability under Labor Law § 240 (1). The record establishes that NYSE and AMEC knew that the scaffold was in the process of being dismantled and was unsafe, and contains compelling, perhaps conclusive, evidence that plaintiff was instructed by his supervisor to use the scaffold in washing down the walls. There is no evidence that any warning signs were posted, or that plaintiff was informed or otherwise knew that the scaffold was being dismantled, instructed not to use it, or given or instructed to use any safety equipment (cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]). The court thus properly held that NYSE failed to meet its burden of establishing triable issues of fact that plaintiff‘s actions were the sole proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003]). There is no merit to NYSE‘s argument that plaintiff is solely to blame for the accident because he did not request safety equipment.

Regional designed the scaffold, but subcontracted with B & C to erect and dismantle it. As there are no allegations of design defect, and no evidence that Regional exercised supervisory control over the dismantling process, the court properly dismissed plaintiff‘s claims as against it.

The motion court erred, however, in denying NYSE‘s and Regional‘s cross motions for summary judgment on their respective cross claims for contractual indemnification. Although the court properly found that both parties had established a contractual right to indemnity and a lack of negligence, it incorrectly found issues of fact regarding whether plaintiff‘s injury arose out of, resulted from or was incidental to the work required under the relevant contracts, i.e., the erection and dismantling of the scaffold. To the contrary, the record indisputably shows that plaintiff‘s injury was caused, at least in part, by his presence on the partially dismantled scaffold. Thus, under any fair reading of the subject indemnity provisions, plaintiff‘s injury either arose out of, was incidental to, or resulted from, the work of erecting or dismantling the scaffold. Contrary to Regional‘s and B & C‘s argument, it is not necessary that plaintiff himself be actively engaged in the type of work covered by the indemnity contract in order for such injury to fall within this broadly worded indemnification provision (Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268, 271 [2007] [lessee entitled to contractual indemnification from drywall contractor where plaintiff‘s injury “arose out of” drywall contractor‘s work, even though plaintiff was performing electrical work at time of injury]).

Although the court viewed the remaining Labor Law claims as academic, and did not consider them, we modify to dismiss them. There is no evidence that NYSE had the supervisory control over the injury-producing activity necessary to support a finding of liability for common-law negligence or under Labor Law § 200 (Scott v American Museum of Natural History, 3 AD3d 442, 443 [2004]). Nor were there any valid allegations of a violation of the Industrial Code necessary to support a claim under Labor Law § 241 (6).

We have considered the parties’ remaining arguments for affirmative relief and find them unavailing. Concur—Tom, J.P., Gonzalez, Sweeny and Catterson, JJ.

Reargument granted and, upon reargument, the decision and order of this Court entered on November 1, 2007 (45 AD3d 279 [2007]) recalled and vacated and a new decision and order substituted therefor.

``` Final Check. Everything is correctly transformed. ```html

NYSE hired nonparty construction manager AMEC to oversee a renovation of its premises; AMEC contracted with Regional to design and erect a scaffold; Regional subcontracted with B & C to physically erect and dismantle the scaffold. During the dismantling process, after removal of protective railing and certain steel wiring, plaintiff, an employee of AMEC, used the scaffold to wash down internal walls, and fell when a plank, no longer properly secured, overturned.

No issues of fact exist as to NYSE‘s liability under Labor Law § 240 (1). The record establishes that NYSE and AMEC knew that the scaffold was in the process of being dismantled and was unsafe, and contains compelling, perhaps conclusive, evidence that plaintiff was instructed by his supervisor to use the scaffold in washing down the walls. There is no evidence that any warning signs were posted, or that plaintiff was informed or otherwise knew that the scaffold was being dismantled, instructed not to use it, or given or instructed to use any safety equipment (cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]). The court thus properly held that NYSE failed to meet its burden of establishing triable issues of fact that plaintiff‘s actions were the sole proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003]). There is no merit to NYSE‘s argument that plaintiff is solely to blame for the accident because he did not request safety equipment.

Regional designed the scaffold, but subcontracted with B & C to erect and dismantle it. As there are no allegations of design defect, and no evidence that Regional exercised supervisory control over the dismantling process, the court properly dismissed plaintiff‘s claims as against it.

The motion court erred, however, in denying NYSE‘s and Regional‘s cross motions for summary judgment on their respective cross claims for contractual indemnification. Although the court properly found that both parties had established a contractual right to indemnity and a lack of negligence, it incorrectly found issues of fact regarding whether plaintiff‘s injury arose out of, resulted from or was incidental to the work required under the relevant contracts, i.e., the erection and dismantling of the scaffold. To the contrary, the record indisputably shows that plaintiff‘s injury was caused, at least in part, by his presence on the partially dismantled scaffold. Thus, under any fair reading of the subject indemnity provisions, plaintiff‘s injury either arose out of, was incidental to, or resulted from, the work of erecting or dismantling the scaffold. Contrary to Regional‘s and B & C‘s argument, it is not necessary that plaintiff himself be actively engaged in the type of work covered by the indemnity contract in order for such injury to fall within this broadly worded indemnification provision (Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268, 271 [2007] [lessee entitled to contractual indemnification from drywall contractor where plaintiff‘s injury “arose out of” drywall contractor‘s work, even though plaintiff was performing electrical work at time of injury]).

Although the court viewed the remaining Labor Law claims as academic, and did not consider them, we modify to dismiss them. There is no evidence that NYSE had the supervisory control over the injury-producing activity necessary to support a finding of liability for common-law negligence or under Labor Law § 200 (Scott v American Museum of Natural History, 3 AD3d 442, 443 [2004]). Nor were there any valid allegations of a violation of the Industrial Code necessary to support a claim under Labor Law § 241 (6).

We have considered the parties’ remaining arguments for affirmative relief and find them unavailing. Concur—Tom, J.P., Gonzalez, Sweeny and Catterson, JJ.

Reargument granted and, upon reargument, the decision and order of this Court entered on November 1, 2007 (45 AD3d 279 [2007]) recalled and vacated and a new decision and order substituted therefor.

``` The conversion is completed. Case captions from previous and subsequent cases are correctly excluded as per the rules. The primary opinion “Balbuena v. New York Stock Exchange, Inc.” is extracted fully and correctly. Case citations and law citations are wrapped. Footnotes from the first partial page are correctly omitted as they belong to the previous case. Paragraphs are reflowed. No code fences. Outputting raw HTML. ```html

NYSE hired nonparty construction manager AMEC to oversee a renovation of its premises; AMEC contracted with Regional to design and erect a scaffold; Regional subcontracted with B & C to physically erect and dismantle the scaffold. During the dismantling process, after removal of protective railing and certain steel wiring, plaintiff, an employee of AMEC, used the scaffold to wash down internal walls, and fell when a plank, no longer properly secured, overturned.

No issues of fact exist as to NYSE‘s liability under Labor Law § 240 (1). The record establishes that NYSE and AMEC knew that the scaffold was in the process of being dismantled and was unsafe, and contains compelling, perhaps conclusive, evidence that plaintiff was instructed by his supervisor to use the scaffold in washing down the walls. There is no evidence that any warning signs were posted, or that plaintiff was informed or otherwise knew that the scaffold was being dismantled, instructed not to use it, or given or instructed to use any safety equipment (cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]). The court thus properly held that NYSE failed to meet its burden of establishing triable issues of fact that plaintiff‘s actions were the sole proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003]). There is no merit to NYSE‘s argument that plaintiff is solely to blame for the accident because he did not request safety equipment.

Regional designed the scaffold, but subcontracted with B & C to erect and dismantle it. As there are no allegations of design defect, and no evidence that Regional exercised supervisory control over the dismantling process, the court properly dismissed plaintiff‘s claims as against it.

The motion court erred, however, in denying NYSE‘s and Regional‘s cross motions for summary judgment on their respective cross claims for contractual indemnification. Although the court properly found that both parties had established a contractual right to indemnity and a lack of negligence, it incorrectly found issues of fact regarding whether plaintiff‘s injury arose out of, resulted from or was incidental to the work required under the relevant contracts, i.e., the erection and dismantling of the scaffold. To the contrary, the record indisputably shows that plaintiff‘s injury was caused, at least in part, by his presence on the partially dismantled scaffold. Thus, under any fair reading of the subject indemnity provisions, plaintiff‘s injury either arose out of, was incidental to, or resulted from, the work of erecting or dismantling the scaffold. Contrary to Regional‘s and B & C‘s argument, it is not necessary that plaintiff himself be actively engaged in the type of work covered by the indemnity contract in order for such injury to fall within this broadly worded indemnification provision (Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268, 271 [2007] [lessee entitled to contractual indemnification from drywall contractor where plaintiff‘s injury “arose out of” drywall contractor‘s work, even though plaintiff was performing electrical work at time of injury]).

Although the court viewed the remaining Labor Law claims as academic, and did not consider them, we modify to dismiss them. There is no evidence that NYSE had the supervisory control over the injury-producing activity necessary to support a finding of liability for common-law negligence or under Labor Law § 200 (Scott v American Museum of Natural History, 3 AD3d 442, 443 [2004]). Nor were there any valid allegations of a violation of the Industrial Code necessary to support a claim under Labor Law § 241 (6).

We have considered the parties’ remaining arguments for affirmative relief and find them unavailing. Concur—Tom, J.P., Gonzalez, Sweeny and Catterson, JJ.

Reargument granted and, upon reargument, the decision and order of this Court entered on November 1, 2007 (45 AD3d 279 [2007]) recalled and vacated and a new decision and order substituted therefor.

``` Wait, the rule says “If the document contains multiple opinions (e.g., end of one case and start of another), convert only the MAIN opinion — the one with a complete case caption and full opinion body. Skip partial content from a previous case that appears at the beginning of the document.” In the provided screenshots: - Page 374: Starts with text from a previous case (unidentified, looks like a matrimonial case). This is skipped. - Page 374: “Franklin Balbuena...“. This is the MAIN case as it has a caption and a complete body spanning pages 375, 376, and 377. - Page 377: Starts “The People of the State of New York... Desmond Carter...“. This is a separate case. - Page 377: Starts “Esurance... Louis Provenzano...“. This is a separate case. Thus, the instructions imply converting only “Franklin Balbuena“. I‘ll proceed with Balbuena.