Opinion
November 7, 1991
Appeal from the Supreme Court, Bronx County (Alan Saks, J.).
Viewed most favorably to the opponents of the various motions for summary judgment, the record shows that the plaintiff's decedent was in the employ of Crown Plastering Corp., a subcontractor on the renovation of a commercial building owned by defendant Trump and leased by defendant Manufacturers, with Charles Construction Corp. as the general contractor. The decedent was engaged in transporting materials to the roof when he fell to the pavement from a height of eight to twelve feet. Immediately after the decedent's fall, a plank of the scaffolding was seen dislodged from the rest of the apparatus. There were no safety belts, nets or other devices.
Labor Law § 240 (1) was intended to shift the burden of insuring safety on scaffolding jobs from the workers to owners and general contractors, and liability is absolute (see generally, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513). The injured party must show a violation of Labor Law § 240, and also show that the violation was the proximate cause of the injuries (Golaszewski v. Cadman Plaza N., 136 A.D.2d 596). Proximate cause is demonstrated where the plaintiff generally shows that the defendant's negligence was a substantial cause of the events that produced the injury, and the plaintiff need not demonstrate that the precise manner in which the accident happened, or the extent of the injuries, was foreseeable (Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308). The worker's alleged contributory negligence is irrelevant (Hauff v. CLXXXII Via Magna Corp., 118 A.D.2d 485), and speculation regarding an injured worker's conduct is insufficient to defeat a plaintiff's showing on proximate cause (Manning v. Kenneally Constr. Co., 168 A.D.2d 861, lv denied 77 N.Y.2d 806).
Summary judgment for the plaintiff was appropriate because the scaffolding's collapse is not in dispute, and would not have occurred had the scaffolding been properly constructed, regardless of any possible argument as to the decedent's alleged loss of balance (see, La Lima v. Epstein, 143 A.D.2d 886). The unsworn statement on which the defendant and third-party plaintiff relied has no probative value (Neustadter Furs v Rosenstiel, 37 A.D.2d 523), and, in any event, largely supports summary judgment for the plaintiff.
Summary judgment was properly granted to the owner and lessee of the premises against the general contractor on the issue of common-law indemnity. There is nothing to suggest that the owner or lessee had the authority to supervise and control that portion of the project on which the injury occurred (See, Kenny v. Fuller Co., 87 A.D.2d 183, lv denied 58 N.Y.2d 603). The liability of the owner and lessee under Labor Law § 240 is entirely vicarious, and they are entitled to indemnity (see, Blaskovic v. Penguin House Tenants Corp., 158 A.D.2d 434).
The general contractor could obtain summary judgment against the subcontractor only by showing as a matter of law that the subcontractor was actually responsible for the accident (Young v. Casabonne Bros., 145 A.D.2d 244). The general contractor has no claim for contractual indemnity since, under General Obligations Law § 5-322.1, the promise to indemnify regardless of the general contractor's fault is unenforceable as a matter of public policy (see, Arbusto v. Fordham Univ., 160 A.D.2d 191). On the general contractor's claim for commonlaw indemnity, there is contradictory evidence that representatives of the general contractor were on the building site on the day of the accident, and there is a question of fact as to the extent to which the general contractor's employees used the scaffolding. Accordingly, summary judgment is precluded by issues of fact concerning the degree of fault, if any, attributable to each party involved (La Lima v. Epstein, supra).
Concur — Murphy, P.J., Wallach, Kupferman and Ross, JJ.