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

591
CA 13-02209
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND DEJOSEPH, JJ.


DAVID KRAJNIK, PLAINTIFF-RESPONDENT,

                     V                                MEMORANDUM AND ORDER

FORBES HOMES, INC., DOING BUSINESS AS
FORBES CAPRETTO, DEFENDANT-RESPONDENT,
AND BURCHVILLE CONSTRUCTION, INC.,
DEFENDANT-APPELLANT.


KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (MELISSA A. FOTI OF COUNSEL),
FOR DEFENDANT-APPELLANT.

COLLINS & COLLINS, LLC, BUFFALO (CHARLES H. COBB OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.

WEBSTER SZANYI LLP, BUFFALO (KEVIN T. O=BRIEN OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered February 27, 2013. The order, among other things,
denied the motion of defendant Burchville Construction, Inc., for summary
judgment, granted the cross motion of plaintiff for partial summary
judgment on liability pursuant to Labor Law ' 240 (1) and granted the
motion of defendant Forbes Homes, Inc., doing business as Forbes Capretto,
for conditional indemnification and contribution against Burchville
Construction, Inc.

     It is hereby ORDERED that the order so appealed from is unanimously
modified on the law by denying that part of plaintiff=s cross motion against
defendant Burchville Construction, Inc., granting in part the motion of
defendant Burchville Construction, Inc. and dismissing the Labor Law cause
of action against it, and denying that part of the motion of defendant
Forbes Homes, Inc., doing business as Forbes Capretto, for summary judgment
on its cross claim for indemnification and contribution against defendant
Burchville Construction, Inc. and as modified the order is affirmed without
costs in accordance with the following Memorandum: Plaintiff commenced
this Labor Law and common-law negligence action seeking damages for
injuries he sustained while working at premises owned by defendant Forbes
Homes, Inc., doing business as Forbes Capretto (Forbes). Defendant
Burchville Construction, Inc. (Burchville) contracted with Forbes to
perform the framing work on a new home construction project undertaken
by Forbes at the premises as general contractor. When the construction
of the home was in the final stages, plaintiff=s employer, the supplier
of the window units in the home, sent him to the work site to conduct
                                    -2-                                 591
                                                                CA 13-02209

a final operational inspection of all the windows. While in the attic
checking a window installed on a vertical wall, plaintiff attempted to
reach the window by using a makeshift ladder already in place and consisting
of two boards, each two inches by four inches, nailed across the vertical
framing members under the window. Plaintiff fell between the attic floor
joists to the floor of the foyer below and sustained injuries.


     Insofar as relevant to this appeal, Burchville moved for summary
judgment dismissing the complaint and all cross claims against it, and
plaintiff cross-moved for, inter alia, partial summary judgment on
liability on the Labor Law ' 240 (1) claim against Burchville. In
addition, Forbes moved, inter alia, for summary judgment on its cross
claim for conditional contractual and common-law indemnification or
contribution against Burchville. Supreme Court, also as relevant on
appeal, denied Burchville=s motion, granted that part of plaintiff=s cross
motion with respect to Burchville, and granted that part of Forbes= motion
with respect to Burchville.

     We agree with Burchville that the court erred in granting that part
of plaintiff=s cross motion with respect to Burchville and in denying that
part of its motion with respect to the Labor Law cause of action against
it. We therefore modify the order accordingly. By the express terms
of Labor Law '' 240 (1) and 241 (6), the nondelegable duties imposed by
those statutes apply only to Acontractors and owners and their agents.@
 Labor Law ' 200 is a codification of Alandowners= and general contractors=
common-law duty to maintain a safe workplace@ (Ross v Curtis-Palmer
Hydro-Elec. Co., 81 NY2d 494, 505). Here, in the absence of any evidence
that Burchville exercised any authority or control over the work site
or the injury-producing work, we conclude that Burchville was not a
statutory agent of either an owner or general contractor (see Brownell
v Blue Seal Feeds, Inc., 89 AD3d 1425, 1427-1428).

     We conclude, however, that the court properly denied that part of
Burchville=s motion with respect to the common-law negligence cause of
action. Even assuming, arguendo, that Burchville met its initial burden
with respect to that cause of action, we conclude that plaintiff raised
an issue of fact whether Burchville=s employees negligently installed the
makeshift ladder. An award of summary judgment in favor of a subcontractor
dismissing a negligence cause of action is improper where, as here, there
is a triable issue of fact whether the subcontractor created an
unreasonable risk of harm that was a proximate cause of the plaintiff=s
injuries (see Erickson v Cross Ready Mix, Inc., 75 AD3d 519, 523, lv
dismissed 16 NY3d 794). Thus, the court properly denied that part of
Burchville=s motion (see Severino v Hohl Indus. Servs., 300 AD2d 1049,
1049; see also Poracki v St. Mary=s R.C. Church, 82 AD3d 1192, 1195-1196).


     We further conclude that the court erred in granting that part of
Forbes= motion seeking summary judgment on its cross claim for contractual
and common-law indemnification or contribution against Burchville, and
we therefore further modify the order accordingly. Contrary to
Burchville=s contention, however, the court properly denied that part of
its motion for summary judgment dismissing that cross claim against it.
                                   -3-                                591
                                                              CA 13-02209

 With respect to contractual indemnification, we note that the contract
required Burchville to indemnify Forbes only if Burchville was negligent
and, contrary to Burchville=s contention, there are triable issues of fact
with respect thereto (see Walter v United Parcel Serv., Inc., 56 AD3d
1187, 1188). With respect to common-law indemnification and/or
contribution, we conclude that, although Burchville established as a
matter of law that it did not supervise or direct the injury-producing
work (see McCarthy v Turner Constr., Inc., 17 NY3d 369, 377-378), there
are issues of fact whether Burchville was the party responsible for the
allegedly negligent placement of the makeshift ladder. We thus conclude
that summary judgment was not appropriate with respect to common-law
indemnification or contribution (see Carro v Lyons Falls Pulp & Paper,
Inc., 56 AD3d 1276, 1277-1278).




Entered:   August 8, 2014                         Frances E. Cafarell
                                                  Clerk of the Court
