Landahl v. City of BuffaloLandahl v. City of Buffalo
Appeals from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.), dated December 8, 2011 in a personal injury action. The order denied the motion of third-party defendant for summary judgment, denied the motion of defendant City of Buffalo for summary judgment and denied in part the cross motion of defendant/third-party plaintiff U&S Services, Inc. for summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law by granting that part of the cross motion of defendant/third-party plaintiff with respect to the
Memorandum: Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries allegedly sustained by Robert Landahl (plaintiff) when his foot slid from a worn marble step with a 1 1/2-inch depression on a stairway in City Hall in defendant City of Buffalo (City). Plaintiff was employed by third-party defendant, Industrial Power & Lighting Corporation (IPL), a subcontractor hired by defendant/third-party plaintiff, U&S Services, Inc. (U&S), the project manager. Plaintiffs asserted causes of action against U&S for violations of
Turning first to IPL‘s appeal, we reject IPL‘s contentions that the court erred in denying its motion because the subcontract is unclear and ambiguous as to whether IPL must indemnify U&S relative to plaintiff‘s accident.
“[W]hen a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed. The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances”
(Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427, 433 [2005], quoting Hooper Assoc. v AGS Computers, 74 NY2d 487, 491-492 [1989]). Here, the subcontract explicitly evidenced IPL‘s promise to indemnify U&S in the event of an on-the-job injury caused by an act or omission of IPL in the performance of that agreement (see id.). We further conclude that IPL failed to meet its initial burden of establishing that it was not negligent with respect to the accident (cf. Martinez v Tambe Elec., Inc., 70 AD3d 1376, 1377-1378 [2010]; Masters v Celestian, 21 AD3d 1426, 1427 [2005]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Turning next to U&S‘s appeal, we reject U&S‘s contention that its duty to maintain the premises in a safe condition was obviated by the open and obvious nature of the stair in question and thus that the court erred in denying its cross motion with respect to the
Contrary to U&S‘s further contention with respect to the remaining Labor Law claims and the common-law negligence cause of action against it, the issue of proximate cause is for the jury (see generally Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980], rearg denied 52 NY2d 784 [1980]; Prystajko v Western N.Y. Pub. Broadcasting Assn., 57 AD3d 1401, 1403 [2008]). Although U&S contends that a slip on a smooth marble step is not actionable (see Portanova v Trump Taj Mahal Assoc., 270 AD2d 757, 758 [2000], lv denied 95 NY2d 765 [2000]), that contention is of no moment inasmuch as plaintiffs allege that plaintiff fell on a stair that was worn and cupped.
Contrary to the further contention of U&S, the issue whether U&S directed or controlled plaintiff‘s work methods is immaterial to a determination whether U&S is liable under the
“Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work”
(Fisher v WNY Bus Parts, Inc., 12 AD3d 1138, 1139 [2004], quoting Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; see Brownell v Blue Seal Feeds, Inc., 89 AD3d 1425, 1427 [2011]). The theory of liability under that Labor Law section may be based either “on a defective condition of the premises [or] the manner of the work” (Piazza v Frank L. Ciminelli Constr. Co., Inc., 2 AD3d 1345, 1349 [2003]; see Ortega v Puccia, 57 AD3d 54, 61 [2008]). U&S‘s contention “presupposes that supervision or control over the plaintiff‘s work is the proper legal standard against which the defendant[‘s] alleged liability is to be measured in this instance,” i.e., based on the manner of the work (Chowdhury v Rodriguez, 57 AD3d 121, 128 [2008]), and we agree with plaintiffs that they are alleging a defective condition of the premises. In any event, we conclude that U&S failed to meet its initial burden with respect to the
We further conclude under the circumstances of this case, however, that the court erred in denying that part of U&S‘s cross motion seeking summary judgment dismissing the
Turning now to the City‘s appeal, we reject the City‘s contention that the prior written notice requirement of
Scudder, P.J., Fahey, Carni, Lindley and Sconiers, JJ.