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

244
CA 14-01125
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


JEFFERY BURNS, PLAINTIFF-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

LECESSE CONSTRUCTION SERVICES LLC, DUKES
PROPERTY DEVELOPMENT, LLC, THE MILLS HIGH
FALLS HOUSING DEVELOPMENT FUND COMPANY, INC.,
U.S. CEILING CORP., URBAN LEAGUE OF
ROCHESTER, NY, INC., DEFENDANTS-APPELLANTS,
AND PRO CARPET, INC., DEFENDANT.
--------------------------------------------------
PRO CARPET, INC., THIRD-PARTY
PLAINTIFF-APPELLANT,

                    V

JEFFERY W. BURNS, DOING BUSINESS AS BURNS FLOORING,
THIRD-PARTY DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


BURDEN, GULISANO & HICKEY, LLC, BUFFALO (PHILIP M. GULISANO OF
COUNSEL), FOR DEFENDANTS-APPELLANTS LECESSE CONSTRUCTION SERVICES LLC,
THE MILLS HIGH FALLS HOUSING DEVELOPMENT FUND COMPANY, INC. AND URBAN
LEAGUE OF ROCHESTER, NY, INC.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, ROCHESTER (MATTHEW
A. LENHARD OF COUNSEL), FOR DEFENDANT-APPELLANT DUKES PROPERTY
DEVELOPMENT, LLC.

LIPPMAN O’CONNOR, BUFFALO (ROBERT H. FLYNN OF COUNSEL), FOR
DEFENDANT-APPELLANT U.S. CEILING CORP.

GOERGEN, MANSON & MCCARTHY, BUFFALO (KELLY J. PHILIPS OF COUNSEL),
FOR THIRD-PARTY PLAINTIFF-APPELLANT.

TREVETT CRISTO SALZER & ANDOLINA, P.C., ROCHESTER (DANIEL P. DEBOLT OF
COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT.

CELLINO & BARNES, P.C., ROCHESTER (K. JOHN WRIGHT OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeals from an order of the Supreme Court, Monroe County (J.
Scott Odorisi, J.), entered April 7, 2014. The order granted the
motion of Pro Carpet, Inc., for summary judgment dismissing the
                                 -2-                           244
                                                         CA 14-01125

amended complaint and cross claims against it, dismissed the
third-party action of Pro Carpet, Inc., denied in part the motion and
cross motions of the remaining defendants for summary judgment, and
granted in part plaintiff’s motion for partial summary judgment.

     It is hereby ORDERED that said appeal by defendant Dukes Property
Development, LLC from the order insofar as it denied that part of its
motion with respect to the Labor Law § 241 (6) claim against it and
granted that part of the motion of defendant-third-party plaintiff Pro
Carpet, Inc. with respect to the Labor Law § 241 (6) claim against it,
and appeal by defendant U.S. Ceiling Corp. from the order insofar as
it denied that part of its cross motion with respect to the Labor Law
§ 241 (6) claim against it, and appeal by defendants Lecesse
Construction Services LLC, The Mills High Falls Housing Development
Fund Company, Inc., and Urban League of Rochester, NY, Inc. from the
order insofar as it granted the motion of defendant-third-party
plaintiff Pro Carpet, Inc., and insofar as it sua sponte dismissed the
third-party complaint is dismissed without costs, and the order is
modified on the law by granting in part the cross motion of defendants
Lecesse Construction Services LLC, The Mills High Falls Housing
Development Fund Company, Inc. and Urban League of Rochester, NY, Inc.
with respect to the Labor Law § 241 (6) claim and dismissing that
claim against them except to the extent that it is premised on
violations of 12 NYCRR 23-1.7 (e) and 23-1.30; granting that part of
the motion of defendant Dukes Property Development, LLC and that part
of the cross motion of defendant U.S. Ceiling Corp. with respect to
the Labor Law § 200 claim and dismissing that claim against them;
denying plaintiff’s motion in its entirety; and reinstating the third-
party complaint of defendant-third-party plaintiff Pro Carpet, Inc.,
and granting that part of its motion seeking summary judgment on its
claim for attorney’s fees and costs against third-party defendant
pursuant to the indemnification agreement, and as modified the order
is affirmed without costs.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries that he allegedly
sustained when he fell down a stairway in an apartment complex then
under construction. The accident allegedly occurred when he tripped
on a drywall screw that was protruding out of the top of the stairway.
Defendant Lecesse Construction Services LLC (Lecesse) was the general
contractor for the construction project, and defendants The Mills High
Falls Housing Development Fund Company, Inc. (Mills) and Urban League
of Rochester, NY, Inc. (Urban League), jointly owned the apartment
complex. Defendant Dukes Property Development, LLC (Dukes) was the
finish carpentry subcontractor, defendant U.S. Ceiling Corp. (U.S.
Ceiling) was the drywall and insulation contractor, and defendant-
third-party plaintiff Pro Carpet, Inc. (Pro Carpet) was the flooring
subcontractor. Pro Carpet subcontracted a portion of its work to
third-party defendant, Jeffrey W. Burns, doing business as Burns
Flooring, and Pro Carpet commenced a third-party action against him
seeking, inter alia, contractual indemnification pursuant to its “Hold
Harmless, Indemnification and Insurance” agreement with third-party-
defendant.
                                 -3-                           244
                                                         CA 14-01125

     By the order in appeal No. 1, Supreme Court granted in its
entirety Pro Carpet’s motion seeking summary judgment dismissing the
amended complaint and cross claims against it, and sua sponte
dismissed the third-party complaint. The court denied the motion of
Dukes, the cross motion of U.S. Ceiling and the cross motion of
Lecesse, Mills and Urban League (collectively, Lecesse defendants)
insofar as they each sought summary judgment dismissing the common-law
negligence and Labor Law §§ 200 and 241 (6) claims against them. The
court granted plaintiff’s motion to the extent that it sought partial
summary judgment determining that the accident was a substantial
factor in causing his lumbar spine injuries, which required medical
treatment that included surgery.

     By the order in appeal No. 2, the court, inter alia, granted the
motion of Dukes and the cross motion of U.S. Ceiling seeking, inter
alia, leave to reargue their respective motion and cross motion
insofar as they sought summary judgment dismissing the Labor Law § 241
(6) claim against them. Upon reargument, the court adhered to its
original determination with respect to that claim.

     As a preliminary matter, we dismiss the appeals of Dukes and U.S.
Ceiling from the order in appeal No. 1 insofar as it denied those
parts of their respective motion and cross motion with respect to the
Labor Law § 241 (6) claim (see Loafin’ Tree Rest. v Pardi [appeal No.
1], 162 AD2d 985, 985). In addition, we dismiss the appeal of the
Lecesse defendants from the order in appeal No. 2. The Lecesse
defendants are not aggrieved by that order, and the contentions raised
in their brief with respect to that order are in support of affirmance
(see Schramm v Cold Spring Harbor Lab., 17 AD3d 661, 663). Pro
Carpet’s appeal from the order in appeal No. 2 is also dismissed
inasmuch as Pro Carpet has not raised on appeal any issue with respect
to that order and has thus abandoned its appeal from that order (see
Abasciano v Dandrea, 83 AD3d 1542, 1545).

     We conclude in appeal No. 2 that the court erred in adhering to
its prior decision denying Dukes’ motion and U.S. Ceiling’s cross
motion insofar as they sought summary judgment dismissing the Labor
Law § 241 (6) claim against them. The nondelegable duty imposed by
that statute extends only to “[general] ‘contractors and owners and
their agents’ ” (Krajnik v Forbes Homes, Inc., 120 AD3d 902, 904,
quoting § 241 [6]; see Russin v Louis N. Picciano & Son, 54 NY2d 311,
317-318). As subcontractors, Dukes and U.S. Ceiling qualify as
statutory agents only with regard to injuries “sustained in those
areas and activities within the scope of the work delegated to [them]”
(Piazza v Frank L. Ciminelli Constr. Co., Inc., 12 AD3d 1059, 1060).
Dukes and U.S. Ceiling met their burden of establishing that they did
not have control over plaintiff’s work or the safety of the area
involved in the incident, and plaintiff failed to raise a triable
issue of fact (see Rice v City of Cortland, 262 AD2d 770, 771-772).
We therefore reverse the order in appeal No. 2 insofar as appealed
from by granting, upon reargument, the motion of Dukes and cross
motion of U.S. Ceiling with respect to Labor Law § 241 (6).

     In appeal No. 1, we conclude with respect to the Labor Law § 241
                                 -4-                           244
                                                         CA 14-01125

(6) claim that the court properly denied that part of the cross motion
of the Lecesse defendants for summary judgment dismissing that claim
against them to the extent that it is premised on the alleged
violations of 12 NYCRR 23-1.7 (e) and 23-1.30. Those regulations are
sufficiently specific to support the Labor Law § 241 (6) claim (see
Murphy v Columbia Univ., 4 AD3d 200, 202). “ ‘Moreover, both
regulations are applicable to the facts of this case and arguably were
violated by [the Lecesse] defendants, thus warranting a trial of
[that] claim’ ” (Mergenhagen v Dish Network Serv. L.L.C., 64 AD3d
1170, 1172). The court erred, however, in denying that part of the
cross motion for summary judgment dismissing the remainder of Labor
Law § 241 (6) claim against the Lecesse defendants. The Occupational
Safety and Health Act regulations cited by plaintiff cannot support
that claim (see Millard v City of Ogdensburg, 274 AD2d 953, 954), and
plaintiff did not address any of the other violations of the
Industrial Code that were alleged in his second amended bill of
particulars in opposition to the cross motion (see Vaneer v 993
Intervale Ave. Hous. Dev. Fund Corp., 5 AD3d 161, 163). We therefore
modify the order in appeal No. 1 by granting that part of the cross
motion of the Lecesse defendants for summary judgment dismissing the
Labor Law § 241 (6) claim against them except to the extent that such
claim is premised on the alleged violation of 12 NYCRR 23-1.7 (e) and
23-1.30.

      The court also erred in denying the motion of Dukes and the cross
motion of U.S. Ceiling insofar as they sought summary judgment
dismissing the Labor Law § 200 claim against them. “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” (Comes v New York State Elec. & Gas Corp., 82
NY2d 876, 877; see Brownell v Blue Seal Feeds, Inc., 89 AD3d 1425,
1427). Dukes and U.S. Ceiling, as subcontractors without control of
plaintiff’s work or ongoing control of the area in which he was
injured, cannot be held liable under Labor Law § 200 (see Krajnik, 120
AD3d at 904; Foots v Consolidated Bldg. Contrs., Inc., 119 AD3d 1324,
1326-1327; Severino v Hohl Indus. Servs., 300 AD2d 1049, 1049-1050).
We therefore further modify the order in appeal No. 1 by granting that
part of the motion of Dukes and the cross motion of U.S. Ceiling
seeking summary judgment dismissing the Labor Law § 200 claim against
them.

     We further conclude, however, that the court properly denied the
motion of Dukes and the cross motion of U.S. Ceiling with respect to
the common-law negligence claims against them. Neither of those
defendants met its burden of establishing its entitlement to judgment
dismissing that claim. As subcontractors, either Dukes or U.S.
Ceiling “ ‘may be held liable for negligence where the work it
performed created the condition that caused the plaintiff’s injury
even if it did not possess any authority to supervise and control the
plaintiff’s work or work area’ ” (Poracki v St. Mary’s R.C. Church, 82
AD3d 1192, 1195), and neither of them established that it did not
create the dangerous condition that caused plaintiff’s fall (see
Babiack v Ontario Exteriors, Inc., 106 AD3d 1448, 1450).
                                 -5-                           244
                                                         CA 14-01125

     The court also properly denied the cross motion of the Lecesse
defendants insofar as it sought dismissal of the Labor Law § 200 and
common-law negligence claims against them. Inasmuch as plaintiff
alleges that the accident occurred as the result of a dangerous
condition on the premises, any issue “whether [the Lecesse] defendants
supervised or controlled plaintiff’s work is irrelevant” (Perry v City
of Syracuse Indus. Dev. Agency, 283 AD2d 1017, 1017). Those
“[d]efendants, as the parties seeking summary judgment dismissing
those claims, were required to ‘establish as a matter of law that they
did not exercise any supervisory control over the general condition of
the premises or that they neither created nor had actual or
constructive notice of the dangerous condition on the premises’ ”
(Ozimek v Holiday Val., Inc., 83 AD3d 1414, 1416). We conclude that
the Lecesse defendants failed to meet that burden.

     We note that plaintiff did not appeal from that part of the order
granting the motion of Pro Carpet for summary judgment dismissing the
amended complaint against it. The Lecesse defendants contend that the
court erred in dismissing the amended complaint and cross claims
against Pro Carpet, and Dukes contends on appeal that the court erred
in dismissing the Labor Law § 241 (6) claim against Pro Carpet.
Inasmuch as the Lecesse defendants did not oppose Pro Carpet’s motion,
however, those defendants are not aggrieved by that part of the order
(see Mixon v TBV, Inc., 76 AD3d 144, 156-157), and Dukes is no longer
aggrieved by that part of the order inasmuch as the Labor Law § 241
(6) claim against Dukes is dismissed by our order in appeal No. 2 (see
CPLR 5511; Walter J. Socha Bldrs. v Town of Clifton Park, 101 AD2d
986, 986). We therefore dismiss the appeals of those defendants from
that part of the order granting Pro Carpet’s motion. We also dismiss
the appeal of the Lecesse defendants from that part of the order sua
sponte dismissing Pro Carpet’s third-party complaint inasmuch as the
Lecesse defendants were not aggrieved thereby (see Goldman v Packaging
Indus., 144 AD2d 533, 534).

     We agree with Pro Carpet that the court erred in sua sponte
dismissing its third-party complaint. We note that Pro Carpet’s
claims against plaintiff should have been interposed as counterclaims
rather than in a third-party action (see CPLR 1007), but we will
disregard this nonprejudicial defect (see Gunderman v Sure Connect
Cable Installation, Inc., 101 AD3d 1214, 1216 n 2). Contrary to the
court’s determination, we conclude that Pro Carpet’s claim for
attorney’s fees and costs pursuant to its indemnification agreement
with third-party defendant was not rendered moot by the dismissal of
the complaint against it (see Hoover v International Bus. Machs.
Corp., 35 AD3d 371, 372). We further conclude that Pro Carpet
established that, pursuant to “ ‘the language and purposes of the
entire agreement and the surrounding facts and circumstances’ ”
(Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777), it is
entitled to recover its “legal fees” and “all costs of defending” this
action. We therefore further modify the order in appeal No. 1
accordingly.

     Finally, we agree with the Lecesse defendants and Dukes that the
court erred in granting that part of plaintiff’s motion seeking
                                 -6-                           244
                                                         CA 14-01125

partial summary judgment determining that the accident “was a
substantial factor in causing [his] lumbar spine injuries, necessity
of lumbar fusion surgery and implantation and maintenance of a spinal
cord stimulator.” Plaintiff failed to meet his burden of establishing
as a matter of law that his injuries were caused by the accident (see
Doyle v Sithe/Independence Power Partners, 296 AD2d 847, 847). We
therefore further modify the order in appeal No. 1 by denying
plaintiff’s motion in its entirety.

      All concur except WHALEN, J., who dissents in part and votes to
modify in accordance with the following memorandum: I respectfully
dissent in part in appeal No. 1. Contrary to the view of the
majority, in my view defendants Dukes Property Development, LLC
(Dukes) and U.S. Ceiling Corp. (U.S. Ceiling) are subject to Labor Law
§ 200 liability. With respect to construction work, Labor Law §§ 240
(1) and 241 (6) explicitly impose duties regarding worker safety upon
“[a]ll contractors and owners and their agents.” The duties imposed
by Labor Law § 200, by contrast, are directed not to specific persons
or entities but rather to the workplace itself, i.e., “[a]ll places to
which [the Labor Law] applies.” I agree with the majority that Dukes
and U.S. Ceiling, as subcontractors, are not liable to plaintiff under
Labor Law § 200 by virtue of their control of the injury-producing
work (see Foots v Consolidated Bldg. Contrs., Inc., 119 AD3d 1324,
1326-1327). Here, however, “plaintiff’s theory of liability is based
on the allegedly defective condition of the premises rather than on
the manner in which the work was performed,” and Dukes and U.S.
Ceiling are subject to Labor Law § 200 liability under that theory
(Verel v Ferguson Elec. Constr. Co., Inc., 41 AD3d 1154, 1156).
Because neither subcontractor met its burden of establishing that it
did not create the dangerous condition at the worksite in violation of
Labor Law § 200, I would affirm that part of the order denying the
motion of Dukes and the cross motion of U.S. Ceiling insofar as they
sought summary judgment dismissing the Labor Law § 200 claim against
them (see Andrade v Triborough Bridge & Tunnel Auth., 35 AD3d 256,
257).




Entered:   July 2, 2015                         Frances E. Cafarell
                                                Clerk of the Court
