This is an appeal and cross-appeal from three summary judgment rulings in a personal injury action. The plaintiff, James Foots, was an employee of the lessee, Sodexho, a commercial laundry business. As part of the lease, Grinder was responsible for structural improvements to the dilapidated building, and Sodexho was responsible for installing the industrial laundry equipment. Grinder hired RCM to manage the project, and subcontracted with Consolidated to construct repositories or linens. These repositories were four large pits, for which Consolidated also constructed wooden frames with plywood covers, in order for employees to safely push large laundry carts across the floor.
The plaintiff was injured in the course of his employment when he drove a forklift over a plywood-covered pit and the cover collapsed. He then sued 60 Grinder Street, LLC (“Grinder”); Rollins Construction Management, Inc. (“RCM”), Grinder’s agent; and Consolidated Building Contractors, Inc. (“Consolidated”), the subcontractor that constructed the pit and the plywood cover. In addition to a common-law negligence claim, the plaintiff sought recovery under Labor Law § 240(1), which required that the plaintiff be injured while erecting, demolishing, repairing, or altering the structure. He also sought recovery under Labor Law § 241(6), which required that plaintiff be injured while installing the industrial laundry equipment as part of the renovation. Lastly, he sought recovery under Labor Law § 200, which is not limited to construction work.
Defendant Grinder moved for summary judgment seeking to dismiss the plaintiff’s common-law negligence cause of action and his claims under Labor Law §§ 200, 240(1), and 241(6) claims. Grinder also moved for summary judgment on its cross-claims against Consolidated seeking contractual and common-law indemnification. The plaintiff moved for partial summary judgment on the issue of liability against Grinder for his Labor Law § 240(1) claim. Both Grinder’s motion and the plaintiff’s were denied, and both appealed. Consolidated moved for summary judgment and sought to dismiss plaintiff’s Labor Law §§ 200, 240(1), and 241(6) claims with respect to Consolidated. The trial court granted this motion, and plaintiff appealed.
The court held that none of the trial court’s rulings were error. Because Consolidated presented evidence that it had completed its contracted work and was not present on the work site at the time of the accident, and plaintiff failed to raise an issue of fact in this regard, Consolidated could not be held liable under any of plaintiff’s causes of action. Grinder failed to establish that Consolidated was negligent or that it exercised control over the injury-producing work, and therefore Consolidated was not required to indemnify Grinder.
The court further held that there were various issues of fact which made the denial of the other motions proper. The common-law negligence claim survived because there was an issue of fact raised as to whether Grinder had actual or constructive notice of the dangerous condition. For this same reason, and also because Grinder failed to establish that they did not control the work site, the Labor Law § 200 claim survived. The trial court properly denied both Grinder’s and plaintiff’s motions on the Labor Law § 240(1) claim because there were issues of fact whether the plaintiff was merely moving a “towel folder,” an activity not covered by this section, or whether he was making an alteration to the structure, which would have been covered. The same issue of fact precluded summary judgment on the Labor Law § 241(6) claim.
The court rejected any additional contentions of the parties and affirmed all the rulings of the trial court.
989 N.Y.S.2d 723 (4th Dep’t. 2014)