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Court Discusses Labor Law Issue

The defendant third-party plaintiff, corporation-one, owned real property where it was building a group of town houses. It hired the third-party defendant, corporation-two, to perform carpentry work and hired the defendant corporation-three to perform roofing work.

A New York Probate Lawyer said the plaintiff, an undocumented alien, was an employee of corporation-two. While standing on a makeshift scaffold, constructing a staircase between the second and third floors inside one of the new townhouses, the plaintiff was struck by a package of shingles that fell from the roof through an opening created for a skylight. The impact caused the scaffold to collapse, and the plaintiff fell to the basement, resulting in severe and permanent injuries, broken bones, head and neck injuries, and the like.

Consequently, a New York Will Lawyer said the plaintiff commenced a personal injury against corporation-one and corporation-three and sought to recover damages for the injuries he sustained in the aforesaid construction accident. Plaintiff asserted causes of action based on common-law negligence and violations of the Labor Law. In a cross claim against corporation-three, and in a third-party action against corporation-two, corporation-one sought contractual and common-law indemnification.

Thereafter, the parties filed their respective motions. On 9 October 2003 and 30 April 2004, the court ruled on the motions.

Manhattan Probate Lawyers said the defendant corporation-three appealed from the orders of the court: dated 9 October 2003, where the Supreme Court of Queens County granted that branch of plaintiff’s motion which was for summary judgment on the issue of liability pursuant to Labor Law, insofar as asserted against it, and granted those branches of the cross motion of defendant corporation-one which were for summary judgment on that party’s cross claims for contractual and common-law indemnification, insofar as asserted against it; dated 30 April 2004, where the same court denied its cross motion for leave to reargue those branches of the cross motion of defendant corporation-one which were for summary judgment on that party’s cross claims for contractual and common-law indemnification, insofar as asserted against it.

A Bronx Probate Attorney said the defendant corporation-two also appealed from the orders of the court: dated 9 October 2003, where the court granted plaintiff’s motion for summary judgment on the issue of liability pursuant to Labor Law and granted that branch of the cross motion of defendant corporation-one which was for summary judgment on the third-party cause of action for contractual indemnification; dated 30 April 2004, where the court denied its cross motion for leave to reargue that branch of the cross motion of defendant corporation-one which was for summary judgment on the third-party cause of action for contractual indemnification.

Defendant corporation-one cross-appealed from the orders of the court: dated 9 October 2003, where the court granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability pursuant to Labor Law, insofar as asserted against it, and, in effect, denied that branch of its cross motion which was for summary judgment dismissing the complaint insofar as it sought recovery for lost wages, and denied that branch of its motion which was for summary judgment on its third-party cause of action for common-law indemnification; dated 30 April 2004, as, upon reargument, and in effect, where the court adhered to the original determination denying that branch of its cross motion which was for summary judgment dismissing the complaint insofar as it sought recovery for lost wages and denied that branch of its motion which was for leave to renew that branch of its cross motion which was for summary judgment on its third-party cause of action for common-law indemnification.

The appellate court ordered that: the cross appeal from so much of the order dated 9 October 2003, as, in effect, denied that branch of the cross motion of the defendant third-party plaintiff which was for summary judgment dismissing the complaint insofar as it sought recovery for lost wages be dismissed, as that portion of the order was superseded by so much of the order dated 30 April 2004 as was made upon reargument; the appeals from the order dated 30 April 2004 be dismissed, as no appeals lie from an order denying reargument; the order dated 9 October 2003 be modified, on the law, by deleting the provision thereof granting that branch of the plaintiff’s motion which was for summary judgment on the issue of the liability of defendant corporation-three pursuant to Labor Law and substituting therefor a provision denying that branch of the motion and deleting the provision thereof granting those branches of the cross motion of the defendant third-party plaintiff which were for summary judgment on its cross claims for contractual and common-law indemnification against defendant corporation-three and for summary judgment on its third-party cause of action for contractual indemnification and substituting therefor provisions denying those branches of the cross motion; as so modified, the order was affirmed insofar as reviewed and, upon searching the record, summary judgment was awarded to defendant corporation-three dismissing the cause of action based on Labor Law, insofar as asserted against it; the order dated 30 April 2004 was affirmed insofar as cross-appealed from; and, one bill of costs was awarded to plaintiff, defendant corporation-three, and corporation-two, payable by defendant corporation-one.

First, the Supreme Court properly, upon reargument, in effect, adhered to its determination denying that branch of the cross motion of corporation-one which was for summary judgment dismissing the complaint insofar as it sought recovery for lost wages. Contrary to corporation-one’s contention, an award of damages for lost wages is not preempted by federal immigration policy, as expressed in the Immigration Reform and Control Act and in the case of Hoffman Plastic Compounds, Inc. v NLRB in 2002, by virtue of the plaintiff’s status as an undocumented alien. While an undocumented alien may be precluded from recovering damages for lost wages if he or she obtained employment by submitting false documentation to the employer, the evidence submitted by corporation-one in support of its cross motion failed to demonstrate the absence of a triable issue of fact as to whether the plaintiff did so in this case.

Second, the Supreme Court properly granted that branch of the plaintiff’s motion which was for summary judgment on the issue of corporation-one’s liability pursuant to Labor Law. A worker at a construction site is entitled to judgment as a matter of law against an owner under Labor Law where, as here, the furnished protective devices fail to prevent a foreseeable external force from causing a worker to fall from an elevation. Moreover, the package of shingles that struck the plaintiff, which had been stacked together with other packages on the sloped roof of the building, was part of a load that required securing, as held in the cases of Narducci v Manhasset Bay Assoc. in 2001, Orner v Port Auth. of N.Y. & N.J. in 2002, Outar v City of New York in 2001/2005. The evidence in the record established that the packages were not secured and that one of them fell through the skylight opening and struck the plaintiff, causing the wooden planks on which he was standing to break. The plaintiff’s alleged failure to use more planks to create a wider surface on which to stand was not the sole proximate cause of the subject construction accident.

Third, the Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment on the issue of corporation-three’s liability pursuant to Labor Law. A prime contractor hired for a specific project is subject to liability under Labor Law as a statutory agent of the owner or general contractor only if it has been delegated the work in which plaintiff was engaged at the time of his injury, and is therefore responsible for the work giving rise to the duties referred to in and imposed by the statute, as held in the case of Russin v Louis N. Picciano & Son in 1981. Here, corporation-three had the authority to supervise and control the area and the activity which precipitated plaintiff’s accident. However, the nondelegable liability imposed by Labor Law attaches only to a contractor that has the authority to supervise or control the particular work in which the plaintiff was engaged at the time of his injury. The evidence clearly established as a matter of law that corporation-three had no authority to supervise or control the work being performed by the plaintiff at the time of his accident. Thus, summary judgment must be awarded to corporation-three dismissing the cause of action based on Labor Law insofar as asserted against it.

Fourth, the Supreme Court properly denied that branch of corporation-one’s cross motion which was for summary judgment on its common-law indemnification cause of action against corporation-two, since corporation-one did not demonstrate, through competent medical evidence, that the plaintiff sustained a grave injury, pursuant to the Workers’ Compensation Law and as held in the case of Ibarra v Equipment Control in 2000; and, it should have also denied that branch of corporation-one’s cross motion which was for summary judgment on its contractual indemnification cause of action against corporation-two, since corporation-one did not establish, as a matter of law, that the plaintiff’s accident resulted from a negligent or wrongful act or omission by corporation-two, as required by the indemnification clause of corporation-one’s contract with corporation-two.

Fifth, the Supreme Court acted prematurely in granting that branch of corporation-one’s cross motion which was for summary judgment on its common-law indemnification claim against corporation-three since the issue of corporation-two’s negligence, if any, remained unresolved. Under the rules, summary judgment on a claim for common-law indemnification is appropriate only where there are no issues of material fact concerning the precise degree of fault attributable to each party involved.

Sixth, to be entitled to indemnification, corporation-one was required to demonstrate that no negligent act or omission on its part contributed to the plaintiff’s injuries, and that its liability is therefore purely vicarious. Since the unsecured shingles on the roof constituted a dangerous condition, which was at least a contributing cause of the plaintiff’s injuries, corporation-one could be found negligent if it had actual or constructive notice of the condition, even if it did not have the authority to supervise or control the plaintiff’s work. Here, the evidence presented in opposition to corporation-one’s motion showed that the unsecured shingles on the roof were plainly visible to corporation-one’s project manager, its safety director, and its other employees at the construction site, even from the ground, thus raising a triable issue of fact as to whether corporation-one had at least constructive notice of the dangerous condition. That factual issue required the denial of summary judgment on corporation-one’s contractual indemnification claim against corporation-three, as well as all of its other contractual and common-law indemnification claims.

The remaining contentions of the parties were bereft of merit.
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