SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

445 

CA 12-00798 

PRESENT: CENTRA, J.P., FAHEY, CARNI, WHALEN, AND MARTOCHE, JJ.

 

BRETT BELLRENG, PLAINTIFF-APPELLANT-RESPONDENT, 

 

V MEMORANDUM AND ORDER

SICOLI & MASSARO, INC. AND LOCKPORT CITY SCHOOL 

DISTRICT BOARD OF EDUCATION, 

DEFENDANTS-RESPONDENTS-APPELLANTS.

----------------------------------------------- 

SICOLI & MASSARO, INC., 

THIRD-PARTY PLAINTIFF-RESPONDENT-APPELLANT,

V

 

GUARD CONSTRUCTION & CONTRACTING, CORP., 

THIRD-PARTY DEFENDANT-RESPONDENT-APPELLANT.

----------------------------------------------- 

GUARD CONTRACTING CORP., ALSO KNOWN AS GUARD 

CONSTRUCTION & CONTRACTING, CORP., FOURTH-PARTY 

PLAINTIFF,

V

 

INNOVATIVE INSULATED SYSTEMS, INC., ALSO KNOWN 

AS INNOVATIVE INSULATION INC., FOURTH-PARTY 

DEFENDANT.

(APPEAL NO. 2.) 

 

CANTOR, DOLCE & PANEPINTO, P.C., BUFFALO (STEPHEN C. HALPERN OF

COUNSEL), FOR PLAINTIFF-APPELLANT-RESPONDENT. 

SUGARMAN LAW FIRM, LLP, SYRACUSE (STEPHEN A. DAVOLI OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS-APPELLANTS AND THIRD-PARTY PLAINTIFFRESPONDENT-APPELLANT. 

GOLDBERG SEGALLA LLP, BUFFALO (BRIAN R. BIGGIE OF COUNSEL), FOR

THIRD-PARTY DEFENDANT-RESPONDENT-APPELLANT.

 

Appeal and cross appeals from an order of the Supreme Court,

Niagara County (Ralph A. Boniello, III, J.), entered March 21, 2012. 

The order, inter alia, denied in part the cross motion of plaintiff

for partial summary judgment on liability with respect to the Labor

Law §§ 240 (1), 240 (3) and 241 (6) causes of action. 

It is hereby ORDERED that the order so appealed from is 
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CA 12-00798 

unanimously modified on the law by granting those parts of the motion

of defendant-third-party plaintiff, Sicoli & Massaro, Inc., and

defendant Lockport City School District Board of Education for summary

judgment dismissing the Labor Law § 200 and common-law negligence

causes of action, and granting that part of the motion for summary

judgment on the third-party complaint, and as modified the order is

affirmed without costs. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries he sustained when he fell through a roof over the swimming

pool at Lockport High School that was being renovated (project). 

Defendant Lockport City School District Board of Education (Board)

hired defendant-third-party plaintiff, Sicoli & Massaro, Inc.

(Sicoli), as the general contractor on the project. Sicoli entered

into a subcontract with third-party-defendant-fourth-party plaintiff,

Guard Contracting Corp., also known as Guard Construction &

Contracting, Corp. (Guard), to remove the existing roof. Guard, in

turn, subcontracted that work to fourth-party defendant, Innovative

Insulated Systems, Inc., also known as Innovative Insulation, Inc.

(Innovative). While performing work on the project, plaintiff, an

Innovative employee, fell through the deteriorated gypsum roof decking

onto a scaffold that had been erected inside the building to prevent

debris from falling into the pool. At the time of his fall, plaintiff

had unhooked his safety harness from the steel lifeline that had been

placed on the roof. After plaintiff commenced this action for various

Labor Law violations and common-law negligence, Sicoli commenced a

third-party action against Guard seeking contractual indemnification. 

Guard then commenced a fourth-party action against Innovative for,

inter alia, contractual and common-law indemnification. 

As relevant to appeal No. 1, Guard moved for partial summary

judgment on its contractual indemnification cause of action. Supreme

Court denied Guard’s motion, and Guard appeals.

As relevant to appeal No. 2, Sicoli moved for summary judgment

dismissing the complaint in the main action and for summary judgment

on its third-party complaint. We note that, although Sicoli’s motion

sought relief for Sicoli alone, the parties as well as the court

treated the motion as if it had sought relief for Sicoli and the Board

(collectively, defendants). We will do the same (see generally CPLR

2001). Plaintiff cross-moved for partial summary judgment on

liability on the Labor Law §§ 240 (1), 240 (3) and 241 (6) causes of

action, and Guard cross-moved for partial summary judgment dismissing

plaintiff’s Labor Law §§ 200, 240 (1) and 241 (6) causes of action. 

The court denied that part of defendants’ motion and Guard’s cross

motion with respect to the Labor Law § 200 cause of action; denied

that part of the motion and cross motions with respect to the Labor

Law § 240 (1) cause of action; granted that part of defendants’ motion

and, in effect, denied that part of plaintiff’s cross motion with

respect to the Labor Law § 240 (3) cause of action; and granted that

part of defendants’ motion and Guard’s cross motion and denied that

part of plaintiff’s cross motion with respect to the Labor Law § 241

(6) cause of action except insofar as it related to 12 NYCRR 23-1.16. 

Although the court did not explicitly rule on that part of defendants’
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CA 12-00798 

motion with respect to the common-law negligence cause of action, “the

failure to rule is deemed a denial of that part of the motion” (Bald v

Westfield Academy & Cent. Sch., 298 AD2d 881, 882). The court denied

that part of defendants’ motion for summary judgment on the thirdparty complaint. Plaintiff appeals, and defendants and Guard crossappeal. 

Addressing first the issues raised in appeal No. 2, we conclude

that, contrary to plaintiff’s contention, the court properly granted

that part of defendants’ motion seeking summary judgment dismissing

the Labor Law § 240 (3) cause of action. That section, which provides

that “[a]ll scaffolding shall be so constructed as to bear four times

the maximum weight required to be dependent therefrom or placed

thereon when in use[,]” does not apply in this case because the roof

decking through which plaintiff fell was not a scaffold (cf. Caruana v

Lexington Vil. Condominiums at Bay Shore, 23 AD3d 509, 510).

We further conclude that the court properly denied those parts of

defendants’ motion and the cross motions of plaintiff and Guard with

respect to the Labor Law § 240 (1) cause of action. It is well

settled that, “[i]n order to prevail on a cause of action pursuant to

Labor Law § 240 (1), a plaintiff must establish that an owner or

contractor failed to provide appropriate safety devices at an elevated

work site and that such violation of the statute was the proximate

cause of his or her injuries” (Vetrano v J. Kokolakis Contr., Inc.,

100 AD3d 984, 985). Here, plaintiff established that the safety

equipment failed to provide proper protection by submitting his

deposition testimony, wherein he stated that, although he could have

been connected to the steel lifeline at the location where he fell, he

was moving to a new work area, and he could not reach that new work

area while connected to the lifeline (see id. at 985-986; cf. Akins v

Central N.Y. Regional Mkt. Auth., 275 AD2d 911, 912). We conclude,

however, that plaintiff did not meet his initial burden with respect

to the section 240 (1) cause of action inasmuch as his submissions

raised triable issues of fact whether he had a good reason for

disconnecting from the lifeline or whether his own actions in

disconnecting from the lifeline were the sole proximate cause of his

fall (see Fajardo v Trans World Equities Co., 286 AD2d 271, 271; see

also Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40). 

For example, he submitted evidence that raised material issues of fact

whether he was instructed to remain secured to a lifeline at all

times. Further, insofar as plaintiff contends that he met his initial

burden by establishing that his work surface collapsed, plaintiff’s

contention is belied by the abundant evidence in the record

demonstrating that he was not permitted to stand on the roof decking. 

We also conclude that defendants and Guard did not meet their initial

burdens with respect to the section 240 (1) cause of action because

they failed to establish that plaintiff’s actions were the sole

proximate cause of the accident, i.e., that he knew or should have

known that he was expected to use either multiple retractable lanyards

or a safety rope in order to reach all areas of the roof (see

generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). 

We reject defendants’ contention that the court erred in denying
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CA 12-00798 

that part of their motion with respect to the Labor Law § 241 (6)

cause of action insofar as it is based upon a violation of 12 NYCRR

23-1.16. We conclude that 12 NYCRR 23-1.16 (b) applies to the facts

of this case, even though plaintiff was not actually attached to the

lifeline at the time of his fall, inasmuch as plaintiff testified at

his deposition that the safety devices provided to him were inadequate

for him to complete his work because they did not afford him access to

the entire roof (see Latchuck v Port Auth. of N.Y. & N.J., 71 AD3d

560, 560).

We conclude, however, that the court erred in denying that part

of defendants’ motion for summary judgment dismissing the Labor Law §

200 and common-law negligence causes of action, which were based on

defendants’ alleged supervision and control over plaintiff’s work, and

we therefore modify the order accordingly. The deposition testimony

submitted by the parties established that Sicoli and the Board, at

most, engaged in “ ‘monitoring and oversight of the timing and quality

of work[,]’ ” which “ ‘is insufficient to raise a triable issue of

fact with respect to supervision or control for the purposes of . . .

Labor Law § 200’ ” and common-law negligence (Timmons v Barrett Paving

Materials, Inc., 83 AD3d 1473, 1476, lv denied in part and dismissed

in part 17 NY3d 843; see also Bannister v LPCiminelli, Inc., 93 AD3d

1294, 1294-1295; McCormick v 257 W. Genesee, LLC, 78 AD3d 1581, 1581-

1582; Verel v Ferguson Elec. Constr. Co., Inc., 41 AD3d 1154, 1156-

1157).

We further conclude that the court erred in denying that part of

defendants’ motion for summary judgment on the third-party complaint,

in which Sicoli sought contractual indemnification from Guard. We

therefore further modify the order accordingly. Although a party is

not entitled to summary judgment on a contractual indemnification

claim where issues of fact remain whether the indemnitee was actively

negligent (see Jamindar v Uniondale Union Free Sch. Dist., 90 AD3d

612, 616; Stanz v New York State Energy Research & Dev. Auth.

[NYSERDA], 87 AD3d 1279, 1283), as addressed in our analysis with

respect to plaintiff’s Labor Law § 200 and common-law negligence

causes of action, Sicoli established that it was not negligent as a

matter of law (see Nicholas v EPO-Harvey Apts., Ltd. Partnership, 31

AD3d 1174, 1175-1176; Torres v Morse Diesel Intl., Inc., 14 AD3d 401,

403). Additionally, the indemnification provision in the subcontract

between Sicoli and Guard evinces a clear intent that Guard indemnify

Sicoli for all damages arising out of the work subcontracted to Guard,

regardless of who ultimately performed that work (see generally Lipari

v AT Spring, LLC, 92 AD3d 502, 504-505).

Finally, we conclude with respect to appeal No. 1 that the court

properly denied Guard’s motion for partial summary judgment on its

contractual indemnification cause of action against Innovative. The

indemnification provision in the subcontract between Guard and

Innovative requires indemnification only for damages that were caused

by the negligent acts or omissions of Innovative or its

subcontractors. Inasmuch as there are questions of fact whether

Innovative was negligent, Guard’s motion was properly denied (see

Guarnieri v Essex Homes of WNY, 24 AD3d 1266, 1266-1267; cf. Sheridan
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CA 12-00798 

v Albion Cent. Sch. Dist., 41 AD3d 1277, 1279).

Entered: July 5, 2013 Frances E. Cafarell

Clerk of the Court