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

309
CA 13-01437
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND WHALEN, JJ.


JAMES FOOTS, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CONSOLIDATED BUILDING CONTRACTORS, INC.,
DEFENDANT-RESPONDENT,
60 GRIDER STREET LLC,
DEFENDANT-APPELLANT-RESPONDENT,
AND ROLLINS CONSTRUCTION MANAGEMENT, INC.,
DEFENDANT.


GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (VICTOR ALAN OLIVERI OF
COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.

LOSI & GANGI, BUFFALO (HARRY G. MODEAS, JR., OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.

GOLDBERG SEGALLA LLP, BUFFALO (ALBERT J. D’AQUINO OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Frederick J. Marshall, J.), entered November 15, 2012 in a
personal injury action. The order, among other things, denied the
motions of defendant 60 Grider Street LLC for summary judgment and
denied the motion of plaintiff for partial summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Defendant 60 Grider Street LLC (60 Grider) appeals
from an order denying its motion for summary judgment seeking to
dismiss plaintiff’s common-law negligence cause of action and Labor
Law §§ 200, 240 (1), and 241 (6) claims, and denying its motion for
summary judgment on its cross claims against defendant Consolidated
Building Contractors, Inc. (Consolidated) seeking a conditional order
of contractual and common-law indemnification. Plaintiff cross-
appeals from the same order, which denied his motion for partial
summary judgment on the issue of liability against 60 Grider with
respect to his Labor Law § 240 (1) claim, and granted Consolidated’s
motion for summary judgment with respect to his Labor Law §§ 200, 240
(1), and 241 (6) claims.

     This case arose out of injuries plaintiff sustained when he drove
a forklift over a plywood-covered pit, constructed by Consolidated, in
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the floor of a building owned by 60 Grider during the course of his
employment with the lessee, Sodexho, a commercial laundry business.
Pursuant to the lease agreement, 60 Grider was responsible for making
structural improvements and repairs to the long-vacant and dilapidated
building, and Sodexho was responsible for installing the equipment it
needed to operate an industrial laundering facility. 60 Grider hired
defendant Rollins Construction Management, Inc. (RCM) to manage the
renovation project, and subcontracted with Consolidated to construct
four large pits, approximately 10 feet deep, 6 feet wide, and 10 feet
long, in the floor of the facility at Sodexho’s direction, to serve as
repositories for linens. Sodexho began its laundering operations
during the renovation project, and the absence of a suspended
“monorail system” required Sodexho employees to manually push large
laundry carts across the facility. It was therefore necessary to
cover the pits until the monorail system was installed. Following
consultation with Sodexho representatives, Consolidated constructed
wooden frames that it placed in the pits and then covered with three-
quarter-inch plywood, which was flush with the floor.

     We reject 60 Grider’s contention that Supreme Court erred in
denying its motion for summary judgment with respect to the Labor Law
§ 200 claim. Labor Law § 200 “is not limited to construction work,”
and we conclude that the statute encompasses plaintiff’s normal duties
as part of Sodexho’s maintenance staff (Jock v Fien, 80 NY2d 965,
967). Inasmuch as plaintiff’s section 200 claims relate to an
allegedly defective or dangerous condition of the work site, 60 Grider
was required to establish that it did not control the work site and
that it lacked actual or constructive notice of the condition (see
Miller v Savarino Constr. Corp., 103 AD3d 1137, 1138; Ferguson v
Hanson Aggregates N.Y., Inc., 103 AD3d 1174, 1175; Piazza v Frank L.
Ciminelli Constr. Co., Inc., 2 AD3d 1345, 1349). 60 Grider failed to
meet its burden with respect to either issue in its submissions.
Indeed, our review of the record establishes that there is “a question
of fact . . . whether [60 Grider], through its agent, [RCM], exercised
control over the work site and had notice of the allegedly dangerous
condition, thereby precluding summary judgment” to 60 Grider (Samiani
v New York State Elec. & Gas Corp., 199 AD2d 796, 797; cf. Miller, 103
AD3d at 1138-1139; see generally Simms v Elm Ridge Assoc., 259 AD2d
538, 539). Because there is an issue of fact whether 60 Grider had
actual or constructive notice of the dangerous condition, the court
also properly denied its motion with respect to plaintiff’s common-law
negligence cause of action (see Verel v Ferguson Elec. Constr. Co.,
Inc., 41 AD3d 1154, 1156).

     Contrary to the contentions of both plaintiff and 60 Grider, the
court properly denied their respective motions for summary judgment
with respect to the Labor Law § 240 (1) claim because there are issues
of fact whether plaintiff was engaged in an activity covered by that
section. To fall under the protection of Labor Law § 240 (1), “the
task in which an injured employee was engaged must have been performed
during ‘the erection, demolition, repairing, [or] altering . . . of a
building or structure’ ” or must have “involve[d] . . . such
activities” (McMahon v HSM Packaging Corp., 302 AD2d 1012, 1013,
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                                                         CA 13-01437

quoting Martinez v City of New York, 93 NY2d 322, 326). Here, the
parties’ submissions raise an issue of fact whether plaintiff himself
was “altering” or making a “significant physical change to the
configuration or composition of the building or structure” at the time
of his injury (Joblon v Solow, 91 NY2d 457, 465). Specifically, the
record is unclear whether plaintiff was in the process of simply
moving a “towel folder,” which would not afford him the protection of
section 240 (1) (see generally Bodtman v Living Manor Love, Inc., 105
AD3d 434, 434; Zolfaghari v Hughes Network Sys., LLC, 99 AD3d 1234,
1235, lv denied 20 NY3d 861; Maes v 408 W. 39 LLC, 24 AD3d 298, 300,
lv denied 7 NY3d 716), unless that activity “was . . . ancillary” to
the ongoing renovation work (Gallagher v Resnick, 107 AD3d 942, 944;
see Scally v Regional Indus. Partnership, 9 AD3d 865, 867, citing
Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 881; see also Simms,
259 AD2d at 538-539); or, whether he was removing an old machine
weighing approximately 1,000 pounds and then installing and securing
to the cement floor a new machine as a replacement, which would afford
him the protection of section 240 (1) (see Sanatass v Consolidated
Inv. Co., Inc., 10 NY3d 333, 337; Panek v County of Albany, 99 NY2d
452, 458; Joblon, 91 NY2d at 465; Lucas v Fulton Realty Partners, LLC,
60 AD3d 1004, 1005-1006).

     We likewise conclude that the court properly denied 60 Grider’s
motion for summary judgment with respect to plaintiff’s Labor Law §
241 (6) claims. Even assuming, arguendo, that 60 Grider met its
initial burden on its motion, we conclude that plaintiff raised an
issue of fact by submitting evidence that, at the time of the
accident, the renovation was ongoing and that he was engaged in a
covered activity, i.e., the installation of industrial laundry
equipment, which was part of the larger renovation project (see 12
NYCRR 23-1.4 [b] [13]; see also Nagel v D & R Realty Corp., 99 NY2d
98, 103; Piazza v Shaw Contract Flooring Servs., Inc., 39 AD3d 1218,
1219).

     We reject plaintiff’s contention that the court erred in granting
Consolidated’s motion seeking summary judgment dismissing the Labor
Law §§ 200, 240 (1) and 241 (6) claims. Consolidated established its
entitlement to summary judgment on those claims by submitting evidence
that it had completed its work and was not at the work site at the
time of plaintiff’s injury; and, that as a subcontractor, it did not
have the “authority to supervise or control the work that caused the
plaintiff’s injury” and thus cannot be held liable under Labor Law §§
200, 240 (1), or 241 (6) (Tomyuk v Junefield Assoc., 57 AD3d 518, 521;
see Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d 553, 554). Plaintiff
failed to raise an issue of fact by submitting invoices that
Consolidated submitted to Sodexho in May 2007 (see generally Zuckerman
v City of New York, 49 NY2d 557, 562). The invoices merely
demonstrate that Consolidated was present at the work site sometime
after the accident, but they do not raise an issue of fact whether
Consolidated had the requisite authority to supervise or control the
work site or the work that resulted in plaintiff’s injuries (see
generally Brownell v Blue Seal Feeds, Inc., 89 AD3d 1425, 1427-1428).
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                                                         CA 13-01437

     60 Grider contends that it is entitled to a conditional order of
contractual and common-law indemnification from Consolidated because
60 Grider’s liability, if any, would be solely statutory or vicarious,
and that the court erred in failing to grant it such an order. We
reject that contention. 60 Grider is not entitled to a conditional
order of contractual indemnification because it failed to meet its
burden of establishing as a matter of law that Consolidated was
negligent, as required by the parties’ contract (see Walter v United
Parcel Serv., Inc., 56 AD3d 1187, 1188). 60 Grider also is not
entitled to a conditional order of common-law indemnification because
it failed to establish as a matter of law either that Consolidated was
negligent or that Consolidated exercised actual supervision or control
over the injury-producing work (see McCarthy v Turner Constr., Inc.,
17 NY3d 369, 377-378; Naughton v City of New York, 94 AD3d 1, 10;
Osgood v KDM Dev. Corp., 92 AD3d 1222, 1223).

     We have reviewed the remaining contentions of the parties and
conclude that they are without merit.




Entered:   July 3, 2014                         Frances E. Cafarell
                                                Clerk of the Court
