        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1333
CA 12-01208
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.


ROBERT LANDAHL AND GAIL LANDAHL,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO AND U&S SERVICES, INC.,
DEFENDANTS-APPELLANTS.
----------------------------------------
U&S SERVICES, INC., THIRD-PARTY
PLAINTIFF-RESPONDENT,

                    V

INDUSTRIAL POWER & LIGHTING CORPORATION,
THIRD-PARTY DEFENDANT-APPELLANT.


BARTH SULLIVAN BEHR, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR
DEFENDANT-APPELLANT U&S SERVICES, INC. AND THIRD-PARTY PLAINTIFF-
RESPONDENT.

CAPEHART & SCATCHARD, P.A., ELMIRA (MATTHEW R. LITT OF COUNSEL), FOR
THIRD-PARTY DEFENDANT-APPELLANT.

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (BRYAN E. DOLIN OF
COUNSEL), FOR DEFENDANT-APPELLANT CITY OF BUFFALO.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     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 Labor
Law § 241 (6) claim in its entirety and as modified the order is
affirmed without costs.

     Memorandum: Plaintiffs commenced this Labor Law and common-law
negligence action seeking damages for injuries allegedly sustained by
                                 -2-                          1333
                                                         CA 12-01208

Robert Landahl (plaintiff) when his foot slid from a worn marble step
with a 1½-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 Labor Law §§ 200, 240 (1) and 241 (6) and common-law
negligence. Plaintiffs also asserted a cause of action against the
City for common-law negligence, and U&S commenced the third-party
action against IPL seeking, inter alia, contractual indemnification.
IPL subsequently moved for summary judgment dismissing the third-party
complaint, and the City moved and U&S cross-moved for summary judgment
dismissing the amended complaint against them. Supreme Court, in
relevant part, granted U&S’s cross motion with respect to the Labor
Law § 240 (1) claim and with respect to the Labor Law § 241 (6) claim
insofar as it is premised on the violation of 12 NYCRR 23-1.5 (a), 23-
1.7 (d) and 23-1.32, and denied the motions of IPL and the City. IPL,
U&S and the City appeal.

     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, quoting Hooper Assoc. v
AGS Computers, 74 NY2d 487, 491-492). 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; Masters v Celestian, 21 AD3d 1426,
1427; see generally Zuckerman v City of New York, 49 NY2d 557, 562).

     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 Labor Law
§ 200 claim and the common-law negligence cause of action against it.
“The issue whether a condition was readily observable impacts on
plaintiff’s comparative negligence and does not negate [a] defendant’s
duty to keep the premises reasonably safe” (Pelow v Tri-Main Dev., 303
AD2d 940, 941; see Bax v Allstate Health Care, Inc., 26 AD3d 861,
863). U&S’s reliance on Gasper v Ford Motor Co. (13 NY2d 104, 110-
111, mot to amend remittitur granted 13 NY2d 893) is misplaced. That
case stands for the proposition that an open and obvious hazard
inherent in the injury-producing work is not actionable, but here the
defect complained of lies in the condition of the stair in question,
not in the installation work plaintiff was assigned to perform. Thus,
                                 -3-                         1333
                                                        CA 12-01208

the alleged open and obvious condition of the stair does not absolve
U&S of its duty to keep the workplace in a safe condition (see Tighe v
Hennegan Constr. Co., Inc., 48 AD3d 201, 202; England v Vacri Constr.
Corp., 24 AD3d 1122, 1124; cf. Dinallo v DAL Elec., 43 AD3d 981, 982).
We further conclude that U&S failed to establish as a matter of law
that the hazard posed by the stair was open and obvious and that they
had no duty to warn plaintiff of that tripping hazard (see Juoniene v
H.R.H. Constr. Corp., 6 AD3d 199, 200-201).

     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, rearg
denied 52 NY2d 784; Prystajko v Western N.Y. Pub. Broadcasting Assn.,
57 AD3d 1401, 1403). 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, lv denied 95 NY2d 765), 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 Labor Law § 200 claim
and the common-law negligence cause of action against it. “ ‘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, quoting Comes v New York State Elec. & Gas Corp., 82
NY2d 876, 877; see Brownell v Blue Seal Feeds, Inc., 89 AD3d 1425,
1427). 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; see Ortega v Puccia, 57 AD3d 54, 61). 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), 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 Labor Law § 200 claim and the
common-law negligence cause of action against it “ ‘because it failed
to establish that it had no [actual or] constructive notice of the
allegedly hazardous condition[]’ ” of the stair in question (Kobel v
Niagara Mohawk Power Corp., 83 AD3d 1435, 1435; see Baker v City of
Buffalo, 90 AD3d 1684, 1685).

     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 Labor Law § 241 (6)
claim insofar as it is premised on the alleged violation of 12 NYCRR
23-1.7 (e) (1). U&S met its initial burden of establishing that 12
NYCRR 23-1.7 (e) (1) is inapplicable to the facts of this case (see
generally Smith v County of Monroe, 229 AD2d 984, 984), and plaintiffs
                                 -4-                          1333
                                                         CA 12-01208

failed to raise a triable issue of fact in opposition thereto (see
generally Zuckerman, 49 NY2d at 562). We therefore modify the order
by granting that part of the cross motion of U&S with respect to the
Labor Law § 241 (6) claim in its entirety.

     Turning now to the City’s appeal, we reject the City’s contention
that the prior written notice requirement of Buffalo City Charter §
21-2 applies to the facts of this case (see Quackenbush v City of
Buffalo, 43 AD3d 1386, 1388). Contrary to the further contention of
the City, we conclude that there is a triable issue of fact whether
the 1½-inch depression in the stair in question is a dangerous or
defective condition (see Smith v A.B.K. Apts., 284 AD2d 323, 323;
Wolcott v Forgnone, 277 AD2d 1039, 1039; see generally Trincere v
County of Suffolk, 90 NY2d 976, 977). We have reviewed the remaining
contention of the City and conclude that it is without merit.




Entered:   February 1, 2013                    Frances E. Cafarell
                                               Clerk of the Court
