Justin Nazario, Respondent,v.222 Broadway, LLC, et al., Respondents.---------------------------------222 Broadway, LLC, et al., Third-Party Respondents, v. Knight Electrical Services Corp., Third-Party Appellant. (And Other Third-Party Actions.)BriefN.Y.November 15, 2016O'CONNOR REDD LLP ATIORNEYS AND COUNSELORS AT LAW STEVEN M. O'CONNOR* JOSEPH T. REDD" JOSEPH A. ORLANDO* AMY L. FENNO++ KEVIN PAGE* P.O. BOX 10001242 KING STREET I PORT CHESTER, NEW YORK 10573 MAIN 914-686-1700 I FAX 914-328-3184 WINW.OCONNORLAWFIRM.COM •MEMBER NY & CT BARS ++MEMBER NY & NJ BARS "MEMBER NY, CO & UT BARS CONNECTICUT OFFICE: 304 Federal Road, Suite 316 Brookfield, Connecticut 06804 DIRECT ALL CORRESPONDENCE TO P.O. BOX AT NY OFFICE State ofNew York Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Attention: John P. Asiello, Esq. August10,2016 Re: Nazario v 222 Broadway APL-2016-00135 PETER URRETA JADE M. CAMERON* JOSEPH M. CIANFLONE HILLARY KAHAN WILLIAM C. NEVES++ JOSHUA M. GREENBERG++ KIEL M. DORAN++ Letter pursuant to section 500.11 of the Court of Appeals Rules of Practice in Support of Third-Party Appellant Knight Electrical's Appeal Setting Forth the Merits We respectfully submit this Letter pursuant to 22 NYCRR Part 500.11 ( c )(2), on behalf of Third-Party Appellant, Knight Electrical Services Corp. (hereinafter "Knight"), setting forth the merits of this appeal, from the Order and Decision of the Appellate Division, First Department, modifying the Order and Decision of the Supreme Court, which dismissed Plaintiffs action against Defendants-Respondents on motions for summary judgment and, upon reinstatement of the action, granted Plaintiffs motion for partial summary judgment pursuant to Labor Law § 240( 1 ), and denied summary judgment to Respondent 222 Broadway on its contractual indemnification claim. Upon Knight's motion for leave to appeal to this Court, the First Department, certified the following question of law pursuant to CPLR 5713, decisive of the correctness of its determination which, in its opinion, ought to be reviewed: "Was the order of this Court, which modified the order of the Supreme Court, properly made?" The First Department's Decision modifying the order of the Supreme Court is annexed as Exhibit "A". The Decision granting Knight's motion to appeal is annexed as Exhibit "B". I. PRELIMINARY STATEMENT The action arises from Plaintiff-Respondent, Justin Nazario's (Hereinafter "Respondent Nazario") October 30, 2010 accident while an electrician for Appellant Knight at a commercial building in Manhattan owned by Respondent, 222 Broadway, and located at the same address. The building was managed by Respondent, Jones Lang LaSalle (hereinafter "Jones") which contracted with Respondent Lime Energy (Hereinafter "Respondent Lime") for replacement oflighting ballasts and bulbs with new, energy efficient, bulbs and ballasts. Respondent Lime subcontracted this work to Knight, which was in progress at the time of Nazario's accident. Nazario alleges that, while standing on an A-frame ladder, and changing one of the ballasts, he was electrocuted by a live circuit while holding wires in his ungloved right hand and, once the power turned off, he fell backward from the ladder. On the factual record, there was no evidence the A-frame ladder on which Nazario stood was defective, nor was there proof another elevation device would have prevented his fall when electrocuted. Instead, Plaintiff-Respondent argued, and the First Department agreed, that because Nazario fell from the ladder after being electrocuted, ipso facto, this was enough to satisfy Plaintiffs prima facie burden of proof that the ladder did not provide adequate protection under Labor Law §240(1 ). It was conceded there was nothing wrong with the ladder which had been set up by Nazario; and there was no expert proof or other evidence suggesting another safety device would have prevented Nazario's fall once electrocuted. However, the First Department held that Respondents were subject to liability under Labor Law §240, citing this Court's holding in Blake v. Neighborhood Hous. Servs. Of N.Y. City, 1 N.Y. 3d 280 (2003), and its own holdings in Vukovich v. 1345 Fee, LLC, 61 A.D. 3d 533 (1st Dept. 2009); Williams v. 520 Madison Partnership, 38 A.D. 3d 464, 465 (1st Dept. 2007), DelRosario v. United Nations Fed. Credit Union, 104 A.D. 3d 515 (1st Dept. 2013). 2 Although the majority opinion acknowledged this Court's holding in Blake that "[ t ]he mere fact that a worker falls from a ladder . . . is not enough, by itself, to establish that the device did not provide sufficient protection" stating "[t]he worker must show that Labor law §240(1) was violated and the violation was a proximate cause of the injury", it concluded Nazario was injured "when he was jolted by the electrical charge and although he hung onto the ladder, because it was not secured to something stable, it and he fell to the ground." See Exhibit "A" p. 6. 1 As Judge J.P. Tom concluded in his concurring opinion, the First Department's holding is unsupported by this Court's precedent, as well as precedent from the other three appellate departments. Although Plaintiff argued it was "axiomatic"the ladder did not provide protection, he conceded it was not defective, and offered no proof another device would have prevented his fall. Nevertheless, Judge Tom stated that he was constrained by First Department precedent, although he believed it could not be reconciled with Blake v. Neighborhood Hous. Servis. OfN.Y. City, supra at 288, wherein the Court held a fall from a safety device will not result in liability under Labor Law §240(1) without a showing of proximate causation. On the basis of the evidence, Plaintiff-Respondent did not meet his prima facie burden of proof, and the grant of summary judgment was erroneous as a matter of law under Labor Law §240(1). Blake v. Neighborhood Hous. Servis. Of N.Y. City, supra; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35 (2004). II. UNDERLYING FACTS A. NAZARIO'S DEPOSITION TESTIMONY Regarding the accident, Nazario testified he completed two lighting fixtures before his accident, and was in the process of removing the ballast and grill from a third while standing on a wooden A-frame ladder when the accident occurred. (R 252-253) He had moved the ladder from another location, opened, and checked it to make sure the metal brackets were fully open, and the ladder was fully extended. (R 1Nazario's testimony was that his left hand was holding the second rung of the ladder from the top immediately before his accident. There was no evidence he hung on to the ladder to keep from falling as suggested by the lower court. Nazario testified:"[ a ]fter I got shocked, I mean, the power came off and I fell back. I fell back, and landed on my butt ... "His fall was precipitated by the power going off and not by ladder instability. (R 276) 3 253-254) He experienced no problems with the ladder before the accident. (R 255) Nazario gave the following testimony regarding the events leading up to the accident: Q. And what were you doing with your left hand? A. I was holding onto the top of- well I was holding onto the step of the ladder ... Q. Which rung? A. I would say the second - the second to the top ... Q. Was your right arm completely outstretched above your head at that time? A. I would say halfway ... Q. What happened as you were holding onto the two wires with your right hand? A. Well, the reason why I grabbed the two wires with my right hand is because ... [t]he feed from the BX wire that is in the ceiling was too short, meaning there should have been some kind of leeway. So when I went to go pull down I grabbed both with one hand. Well, I grabbed to bring it down . . . [a ]nd I was proceeding to bring the two wires down to bring out some of- the feed was too short. It was too close to the BX wire, too close. Q. So you were pulling down on those two wires? A. Yes. Q. And then what happened? A. Then the power just suddenly came on ... Q. What if anything did you do when you had this shock? A. My first reaction was to scream. I was getting shocked, and my first reaction was to scream. I didn't even think I got to scream though. Q. What happened after you either screamed or you had your first reaction to screaming? A. You mean, after I got shocked? Q. Yes. What happened? 4 (R 276) A. Q. A. Q. A. Q. After I got shocked, I mean, the power came off and I fell back. I fell back, and landed on my butt ... Did you fall off the ladder? Yes. Were you still holding onto the ladder when you fell off? Yes. I mean, holding onto the wires when you fell off? A. Yes ... (R 267-273) Q. Did the ladder remain standing after you fell off of it? A. No. Q. What happened to the ladder? A. It came down with me. Q. Were you still holding onto the ladder with your left hand? A. Yes. Q. And when you came to a rest on the floor was the ladder on top of you or somewhere else? A. It landed next to me on top of me, and I pushed it off ... Nazario claims he tested the electricity "before [he] even disconnected the wires from the ballast." (R 261) The tester "didn't blink or beep" which indicated"there was no power running through the fixture." (R 261-262) He brought "the tester close to the hot wire next to the BX wire ... it didn't beep, and [he] didn't have a steady red light indicating there was no power running to this fixture." (R 262) At the time of the accident, Nazario "was touching the wires that were connected from the ballast to the BX wire through the feed in the ceiling" with his right hand. (R 264) About three minutes elapsed between testing the fixture and the accident. (R 289) Although he owned gloves, he was not wearing them. (R 265)2 According to Nazario's testimony, at the time of the accident, the power "suddenly came on." (R 267) He received an electrical shock to his right hand which 2 Although Nazario's comparative fault is not relevant under Labor Law §240(1) analysis, such negligence may be considered under Labor Law §241(6). 5 was contacting the exposed wire. (R 268-270) Then "the power came off and I fell back ... and ... landed on my butt." (R 272) B. PLAINTIFF-RESPONDENT'S APPELLATE BRIEF DISTORTED THE RECORD CONCERNING THE ACCIDENT In an unvarnished attempt to connect the ladder to Nazario's fall after being electrocuted, Plaintiff-Respondent argued that, after receiving the electric shock, he attempted to stabilize himself by grabbing onto the ladder. This was not Nazario's testimony, however. Instead, he testified he was holding the second rung ofthe ladder with his left hand while pulling the wires from the ceiling with his right, when he was suddenly electrocuted; when the power went off, he fell backward off the ladder. On the basis ofhis testimony, therefore, there is no evidence Nazario "grabbed the ladder to keep himself from falling" as suggested by counsel. Plaintiffs factual description was adopted by the First Department. See Exhibit "A" at p. 6. Plaintiff-Respondent's mischaracterization of the testimony is most telling for what he was blatantly attempting to accomplish by suggesting Nazario grabbed the ladder with his left hand to keep from falling- hence trying to use the ladder to prevent his fall. Instead, when electrocuted, at a height of no more than 4' to 5' from the floor, (Nazario said the ceiling height was 8') the power suddenly went off, and Nazario fell backward off the ladder. There was no proof the ladder was a proximate cause of his fall. III. LABOR LAW § 240 LIABILITY REQUIRED THAT NAZARIO ESTABLISH PROXIMATE CAUSATION Labor Law § 240(1) will not trigger strict liability merely because a worker falls from an elevation device. Blake v. Neighborhood Housing, 1 N.Y. 3d 280 (2003). While failure to supply any device, when required, may result in liability, if an elevation device has been provided, plaintiff must establish it's inadequacy contributed to Plaintiffs accident. Izrailev v. Ficarra Furniture of Long Island, Inc., 70 N.Y. 2d 813 (1987); Cammon v. New York, 21 A.D. 3d 196 (1st Dept. 2005); Gonfiantini v. Zino, 184 A.D. 2d 368 (1st Dept. 1992). There is no dispute Nazario was supplied with a proper Labor Law §240 safety device, i.e. the A-frame ladder, free from defects, set up by Nazario before the accident. On the record, Plaintiff- Respondent failed to show another elevation device would have prevented his fall. 6 Pattern Jury Instruction 2:217 requires the trial court to instruct the jury as to every safety device the evidence suggests should have been provided. Caveat 1 of the Comment to Pattern Jury Instruction 2:217 provides: Caveat 1 : The trial court must instruct the jury as to each safety device that evidence indicates was not, but should have been, provided, Izrailev v Ficarra Furniture of Long Island, Inc. 70 NY2d 813, 523 NYS2d 432, 517NE2d 1318(1987); Camon v. NewYork,21 AD2d 196, 799NYS2d 455 (1st Dept. 2005); see Gonfiantini v. Zino, 184 AD2d 368, 584 NYS2d 847 (1st Dept. 1992); Nastasi v. Bradley, 110 AD2d 628, 487 NYS2d 116 (2d Dept. 1985)(trial court's failure to instruct with respect to safety devices other than ladders erroneous as it precluded jury from finding ladders alone were insufficient protection) ... See Comment to Pattern Jury Instructions, Third Edition, 2015 PJI 2:217 p. 435. The basis for the aforementioned Instruction is apparent. Plaintiffs prima facie burden requires that he establish that a §240 device would have prevented the accident. Nazario failed to come forward with proof another elevation safety device would have prevented his fall. As stated by Judge Tom in his concurring opinion, the First Department majority imposed liability under Labor Law §240 without proof of proximate causation- that another safety device would have prevented the happening of the accident. Izrailev v. Ficarra Furniture of Long Island, Inc. 70 N.Y.2d 813 (1987); Camon v. New York, 21 A.D.2d 196 (1 51 Dept. 2005). Plaintiff-Respondent did not retain an expert to opine another safety device would have kept Nazario from falling off the ladder when shocked. (R 733) The First Department suggested "one of plaintiffs coworkers averred that none of the workers, including plaintiff, was provided a safety belt," and that this was "possibly an additional safety device to use while working on the ladders .. . "See Exhibit "A", FN 1. However, Nazario testified he had never seen or used lanyard or a lifeline in connection with work on an A-frame ladder: "I have never been in a position where they give us safety belts to be on a ladder." And when asked: "[h]ad you ever seen anyone using a safety belt while using an A-frame ladder?" Plaintiff answered: "No." (R 317) 7 A. THE FIRST DEPARTMENT ERRONEOUSLY GRANTED SUMMARY JUDGMENT UNDER LABOR LAW §240(1) The First Department's holding takes the issue of Labor Law §240(1) liability away from the jury and imposes liability as a matter of law. The basis for the Majority's decision was its precedent in other electrocution cases involving a fall from a ladder including, Vukovich v. 1345 Fee, LLC, 61 A.D. 3d 533 (1st Dept. 2009); DelRosario v. United Nations Fed. Credit Union, 104 A.D. 3d 515 (1st Dept. 2013); and Caban v. Maria Estella Houses I Assoc., L.P., 63 A.D. 3d 639 (1st Dept. 2009 ), decisional law that is inconsistent with that of every other appellate department involving a worker who falls from an elevation device after being electrocuted. 3 In each of the other departments, the courts have held a question of fact presents under Labor Law §240(1) when a worker falls from a ladder after sustaining an electric shock, and there is no evidence the ladder was defective, nor evidence another device would have prevented the injury. Grogan v. Norlite Corp, 282 A.D. 2d 781 (3rd Dept. 2001); Donovan v. CNY Consol. Contrs., 278 A.D. 2d 881 (4th Dept. 2000); Weber v. 1111 Park Avenue Realty Corp., 253 A.D. 2d 376, 378 (1st Dept. 1998); Ganges v. Tilles Inv. Co., 220 A.D.2d 556, 558, (2d Dept. 1995). In argument below, Plaintiff-Respondent suggested it was foreseeable Nazario could receive an electric shock while performing the work. As a matter of law, however, foreseeability of the risk of electrocution is not decisive of§ 240( 1) liability; rather, the critical inquiry is whether Nazario's fall would have been prevented had he been provided with another elevation device. Without such prima facie proof, a fall from a ladder, in and of itself, does not result in Labor Law §240(1) liability. Blake v. Neighborhood Housing Services of New York City, Inc., supra at 288-289; Orellano v. 29 East 37th Street Realty Corp, 292 A.D. 2d 289 (1st Dept. 2002). Whether an alternative elevation device would have provided protection is ordinarily a question of fact for a jury unless the ladder collapsed, slipped, tipped or failed to perform its function. Woods v. design Center, LLC, 42 A.D.3d 876,839 (4th 3 The First Department states the concurring opinion recommends a "carve out" for electrocution cases involving a fall from a ladder under Labor Law §240. See Exhibit "A", FN 2. We suggest, instead, that the majority opinion creates a carve out for electrocution cases and dispenses with the proximate causation requirement of Labor Law §240. 8 Dept. 2007). In the absence of evidence that a statutory violation was the proximate cause ofPlaintiff s fall, Plaintiff fails to make out a prima facie case ofliability under Labor Law §240(1 ). On this record, there is no evidence the ladder failed to perform as intended, or that it contributed to Nazario's fall when electrocuted. Ayotte v. Gervasio, 81 N.Y. 2d 1062, 1063 (1993). On this appeal, Knight does not argue that a worker who is electrocuted while standing on a ladder may never establish Labor Law §240(1) liability. Instead, we argue electrocution is not an elevation created hazard of the type contemplated by the statute, which "applies only to a narrow class of dangers." Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y. 3d 90 (2015). The risk of electrocution is encompassed, however, by other statutes and codes, including Labor Law § 241(6), and N.Y. Industrial Code § 23 .1.1 0(2)(3 ). Foreseeability of electrocution while performing electrical work from a ladder- the analysis proposed by Plaintiff and adopted by the First Department majority- is not the proper inquiry. Rather, the proper analysis is whether an inadequate safety device was a proximate cause of Plaintiffs injury. On this record, we submit, there is no evidence Nazario fell because of an inadequate elevation device. B. PRECEDENT FROM TillS COURT AND OTHER THREE APPELLATE DEPARTMENTS COMPELS A FINDING THERE IS AN ISSUE OFF ACT ON LIABILITY UNDER LABOR LAW § 240(1) Since Nazario was provided with a working ladder which he set up himself, this is not a case in which the worker was provided with no elevation safety device whatsoever. As a matter oflaw, therefore, it was incumbent upon him to demonstrate the need for another device that would have prevented his fall after being electrocuted. lzrailev v. Ficarra Furniture ofLong Is., 70 N.Y. 2d 813, 815 (1987); Blake, supra. In each of the other three Appellate Departments, and in the First Department before that Court's most recent holdings, the courts uniformly held that a question of fact presents on Labor Law §240(1) liability when Plaintiff falls from an A-frame ladder after electrocution, and there is no evidence the ladder slipped, collapsed or was otherwise defective, nor evidence another device would have prevented plaintiffs fall. See Grogan v. Norlite Corp., 282 A.D. 2d 781 (3rct Dept. 2001); 9 Donovan v. CNY Consol. Contrs., 278 A.D. 2d 881 (4th Dept. 2000); Weber v. 1111 Park Ave. Realty Crop., 253 A.D. 2d 376,378 (1 51 Dept. 1998); Gange v. Tilles lnv. Co., 220 A.D. 2d 556, 558 (2d Dept. 1995). In Gange v. Tilles lnv. Co., supra, the Second Department held that simply because plaintiff fell from a ladder after sustaining an electric shock did not entitle him to a liability under Labor Law §240(1) : the fact that the plaintiff fell off of the ladder only after he sustained an electric shock does not preclude recovery under Labor Law §240( 1) for injuries sustained as a result of the fall from the ladder (citations omittted) However, the plaintiff is not entitled to summary judgment under Labor Law §240(1) as there are questions of fact as to whether, inter alia, the ladder, which was not shown to be defective in any way, failed to provide proper protection, and whether the plaintiff should have been provided with additional safety devices. Id at 558. As acknowledged by Judge Tom in his concurrence, in Weber v. 1111 Park Ave. Realty Corp., supra, a First Department decision that preceded the Court's recent case law in the context of a Labor Law §240( 1) case involving an electrocution accident, the Court held an issue of fact presents on Labor Law §240(1) liability under analogous facts. In Weber, a carpenter was injured when he fell from a ladder sustaining injury after receiving an electric shock. The Court affirmed denial of summary judgment under Labor Law §240(1): Labor Law § 240( 1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person. (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501. While there is no question in this case that there was "harm directly flowing from the application of the force of gravity" (supra at 501; Gordon V. Eastern Ry. Supply, 82 NY2d 555, 561 [fall from ladder obviates 'core' objective of section 240( 1 )"]), the question remains whether or not the "protective device proved inadequate" (Ross v. Curtis- Palmer Hydro-Elec. Co., 10 supra, at 501) so as to constitute the proximate cause of plaintiffs injury as a matter oflaw. (Citations omitted). Id at 377. In Weber, the Court relied on Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 524 (1985), holding a directed verdict is appropriately limited to cases where the only inference to be drawn is that a failure to provide a proper protective device was the proximate cause of plaintiffs injury. In Grogan v. Norlite Corp., 282 A.D. 2d 781 (3rd Dept. 2001), involving an electrical contractor who fell from an A-frame ladder after "he received an electrical shock from a defective fixture which 'threw' him off the ladder", the Third Department held there was no evidence the ladder slipped collapsed or was otherwise defective and, therefore, summary judgment had to be denied. And, in Donovan v. CNY Consol. Contrs., 278 A.D.2d 881 (41h Dept. 2000), the Fourth Department denied summary judgment when plaintiff fire sprinkler installer, standing on an A-frame ladder, received an electric shock and fell. The ladder was found open and lying next to him. Although plaintiff alleged the ladder swayed, and that the failure to secure the ladder or provide another safety device was a proximate cause of his injury, the court determined he was rendered unconscious by the electric shock, and had no recollection ofhis fall. Therefore, there was an issue of fact as to whether failure to secure the ladder or provide another safety device was "a substantial factor leading to the plaintiffs injuries." In each of the above cases, the ladder on which the worker was standing failed to keep him from falling after being electrocuted. However, the courts concluded there was insufficient proof to support a directed verdict- the evidence did not lead to the inevitable conclusion the worker fell because of an inadequate safety device. This Court's decision in Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y. 3d 90 (2015) is instructive, and is based on analogous facts. In Nicometi, plaintiff fell from stilts when he encountered a patch of ice. Under the First Department majority's reasoning in Nazario, since the stilts did not keep Nicometi from falling when he encountered the ice patch, liability under Labor Law § 240( 1) should have been triggered. Certainly it was foreseeable the worker could encounter a patch of ice, or for that matter, a pot hole. However, this Court determined that the risk encountered -a patch of ice- was not of the type contemplated by Labor Law§ 240(1) "[which] 11 appl[ies] only to a narrow class of dangers." Said the Court: "liability may ... be imposed ... only where 'plaintiffs injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." citing Runnerv. New York StockExch., Inc., 13 N.Y. 3d 599 (2009). Nicometi was not injured because of a problem with bad stilts; he was injured while using good stilts, because he slipped on ice - a hazard not contemplated by Labor Law § 240( 1 ). Similarly, Nazario was not injured because of a bad ladder. He was injured while using a good ladder, after he was electrocuted by a live electrical circuit. There is no evidence another elevation device would have prevented his fall. Blake v. Neighborhood Hous. Servs. Of N.Y. City, 1 N.Y. 3d 280, 288 (2003). Judge Tom correctly noted in his concurrence that, prior to the First Department's recent decisions in Vukovich, DelRosario, and now Nazario, the Court held an issue of fact would present if a worker fell from an A-frame ladder after receiving an electric shock, and there was no evidence the ladder contributed to plaintiffs injury. See Weber v. 1111 Park Ave. Realty Corp., 253 A.D.2d 376 (1st Dept. 1998). First Department case law, therefore, was previously consistent with that of every other Department. Gange v. Tilles Inv. Co., 220 A.D. 2d 556 (2d Dept. 1995); Grogan v. Norlite Corp., 282 A.D.2d 781 (3d Dept. 2001); Donovan v CNY Consol. Contrs., 278 A.D. 2d 881 (4th Dept. 2000). The First Department's holding in Nazario veers sharply from its earlier precedent in the context of an electrocution case but is consistent with its recent decisions. In Vukovich v. 1345 Fee, LLC, 61 A.D. 3d 533 (1st Dept. 2009), the Court held that plaintiff, a pipefitter, injured when he received an electric shock and fell from an ''unsecured" A-frame ladder, was entitled to summary judgment under Labor Law §240(1 ), since "[t]he ladder provided to plaintiff was inadequate to prevent him from falling ... after being shocked, and was the proximate cause of his injuries." Id at 534. Yet, as in Donovan v. CNY Consol. Contrs., supra, "plaintiff[Vukovich] had no recollection of falling to the floor". Unlike the Fourth Department, however, which found an issue of fact under Labor Law §240(1), the First Department, in Vukovich , concluded the fact plaintiff did not recall his fall was inconsequential. In DelRosario v. United Nations Fed. Credit Union, the Court held plaintiff carpenter was entitled to summary judgment under Labor Law §240(1) when the 12 ladder on which he was standing "wobbled and moved" causing him to fall after being struck by a live electrical wire. The Court reasoned the ladder was "inadequate to the task of preventing his fall when he came into contact with the exposed wire", and hence the ladder was a proximate cause of his injury. Under the facts ofNazario, the Court has imposed Labor Law §240 as a matter of law, without proof of proximate causation. There is no evidence the ladder wobbled or moved as in DelRosario. And there is no proof another safety device would have prevented Nazario's fall when shocked. Under these facts, therefore, whether the ladder was a proximate cause ofNazario's accident or, instead, incidental to the cause in fact, electrocution, is a factual issue that should be resolved by a jury. Zimmer v. Chemung County Performing Arts, 65 N.Y. 2d 513 (1985). IV. GRANT OF CONTRACTUAL INDEMNIFICATION TO DEFENDANT-RESPONDENTS LIME AND JONES LANG WAS CLEARLY ERRONEOUS Appellant Knight submits that the First Department erroneously granted contractual indemnification to Respondents Jones Lang and Lime Energy on the basis of the record below. A. KNIGHT WORKED AT THE BUILDING UNDER TWO SEPARATE CONTRACTS In granting indemnification to the Defendants-Respondents, the Court below failed to distinguish two separate contracts under which Knight worked in the building in order to determine whether and to whom Knight owed indemnification. At the time ofthe accident, Knight was "in-house" electrician at 222 Broadway pursuant to a contract, the "Service Contractor Agreement", with building manager, Respondent Jones Lange.(R 820) In its role as in-house electrician, Knight performed daily electrical maintenance for Bank of America, the sole building tenant. There was no dispute between the parties that Nazario was performing work under an entirely separate contract between Knight and Lime Energy, known as the "Subcontract for Lighting Implementation" (hereinafter "the Subcontract"). Under the Subcontract, Knight performed bulbs and ballast replacement for tenant, Bank of America. (R 978) 13 It was essential to the Court's determination of Knight Electrical's indemnity obligations that it examine the indemnification provision of the Subcontract. Instead of doing so, the courts below conflated Knight's two contracts, and held that it owed indemnification to both Jones Lang and Lime Energy, when Jones Lang was neither a party to, nor third party beneficiary of, the Subcontract. We respectfully submit Appellant Knight does not owe contractual indemnity to any of the Defendant-Respondents since: 1) Nazario's accident arose from routine maintenance unprotected by Labor Law§ 240( 1) and§ 241 ( 6). See e.g. Picaro v New York Convention Ctr. Dev. Corp., 97 A.D.3d 511 (1 51 Dept. 2012); Blanco v NBC Trust No. 1996A, 2014 NY Slip Op 07573 (1st Dept. 2014); Soriano v. St. Mary's Indian Orthodox Church of Rockland, Inc., 118 A.D.3d 524 (1st Dept. 2014); 2) the only relevant contract for purposes of Knight's indemnity obligation is the Subcontract with Lime Energy, pursuant to which the only other party mentioned is "Customer"- non-party, Bank of America. Neither Respondent 222 Broadway nor Respondent Jones Lang are parties to or beneficiaries of the Subcontract; 3) the Subcontract's indemnity clause violates New York General Obligations Law, § 5-322.1 since it purports to indemnify Lime Energy for active fault. Therefore, Respondent Lime is precluded from recovery in contractual indemnity. B. RESPONDENT LIME ENERGY'S PROPOSAL Before execution of its contract with Jones Lang for lighting upgrade work, Lime sent the following proposal: Project Summary Lime has reviewed your existing lighting system and identified energy savings opportunities for upgrading the lighting system at this location. [identified as 222 Broadway] In general we propose to retrofit older generation florescent fixtures with new long-life, low mercury, lower wattage lamps and ballasts ... (R 97-97) The "Purchase Order" between Lime Energy and Jones Lang sets forth Lime's responsibility for supervision, as well as the means and methods of the work: 14 5. Supervision and Construction Procedures: The Service Contractor shall supervise and direct theW ork, using the Service Contractor's best skill and attention. The service Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract Documents 5 .1 The Service Contractor shall be responsible to Client and the Owner for acts and omissions of Service Contractor's employees, subcontractors and their agents and employees, and other persons performing portions of the Work under a contract with the Service Contractor ... (R 986) Under the plain language of Lime's purchase order, therefore, responsibility for supervision as well as the means and methods of performance of the work was nondelegable. C. NAZARIO'S WORK WAS PURSUANT TO THE SUBCONTRACT There is no dispute Nazario's work had nothing to do with Knight's maintenance contract with Jones Lang. Instead, he was working under the Subcontract with Lime Energy. The only parties to the Subcontract were Lime Energy and Knight: This Subcontract ("Subcontract") ... is between Lime Energy Co .... and Knight Electrical Service Corp ... . (R 978) The only other party mentioned in the Subcontract was the "Customer" Bank of America. (R 978) As stated, neither Respondent 222 Broadway, LLC nor Respondent Jones Lang were named parties to or beneficiaries of the Subcontract. (R 978-985) 15 The Subcontract contains the following indemnification provision: E. INDEMNIFICATION. Subcontractor agrees to indemnify, defend, save and hold harmless Lime ... against all ... liability, . . . caused or created by Subcontractor . . . whether or not through its or their negligence, arising from the Work performed hereunder ... (R 983) The indemnification clause states Knight was expected to indemnify Lime for all claims regardless of whether they arose from Lime's active negligence in violation of GOL §5-322.1. D. THE INDEMNIFICATION CLAUSE OF THE SUBCONTRACT VIOLATES GENERAL OBLIGATIONS LAW§ 5-322.1 Under GOL § 5-322.1, enforcement of the Subcontract indemnification clause is prohibited, since the record discloses a factual basis for Lime's active negligence. ltri Brick & Concrete Corp. v Aetna Cas. & Sur. Co. 89 N.Y. 2d 786 (1997). /d. As this Court held in Itri Brick & Concrete: The language, purpose and history of General Obligations Law § 5-322.1 support our determination that the agreements ... are unenforceable since their full enforcement would result in the contractors being indemnified for their negligence ... As discussed supra, under the Jones Lang-Lime Energy contract, Lime was precluded from delegating supervision or the means and methods used by the Knight in performing the work. (R 897-898) Since Lime's agreement with Jones Lang prohibited Lime from delegating responsibility to Knight, an issue of fact is presented as to whether Lime Energy was actively at fault for Nazario's accident. See Picaso v. 345 E. 73 Owners Corp., 101 A.D.3d 511 (1st Dept. 2012); Mathews v Bank of Am., 107 A.D.3d 495 (1st Dept. 2013). This is not a case in which Lime Energy's liability would be purely vicarious. Dwyer v. Central Park Studios, Inc., 98 A.D.3d 882 (1st 16 Dept. 2012); ltri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., supra; Correa v 100 W. 32nd St. Realty Corp., 290 A.D.2d 306, 306 (1st Dept. 2002). The Subcontract's indemnification clause violates GOL § 5-322.1 as it purports to indemnify Lime Energy for its active fault. (R 896) Moreover, there is no savings clause to interpret in accordance with applicable law. See Guzman v 170 W. End Ave. Assoc., 115 A.D.3d462 (1st Dept. 2014) Minimally, a question of fact presents as to whether Knight owes contractual indemnification to Lime Energy. With respect to Jones Lang, since it was not a party to or third party beneficiary ofthe Subcontract, the First Department erroneously granted their summary judgment motion for indemnification. V. THE FIRST DEPARTMENT'S REFUSAL TO CONSIDER WHETHER PLAINTIFF'S WORK WAS ROUTINE MAINTENANCE WAS CLEARLY ERRONEOUS The First Department declined to consider Knight's argument that Nazario's work- replacing light bulbs and ballasts- was routine maintenance, unprotected by the Labor Law §240(1) and §241(6). The Court's reasoning was that routine maintenance had not been raised by the motions below. See Exhibit "A" at p. 8. The refusal to consider this essential legal question, however, was clearly erroneous, since it is fundamental to the liability determination. Although the Court reasoned Knight's argument raised factual issues "not brought to plaintiffs attention on the motion", the issue of routine maintenance is a legal one; and the nature ofNazario's work was "front and center" in the motion practice below. As this Court held in Soto v. J. Crew Inc., 21 N.Y.3d 562 (2013): Labor Law§ 240 (1) imposes ... absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks ... To recover, the plaintiff must have been engaged in a covered activity-"the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240 [1]; see Panek v County of Albany, 99 NY2d 452, 457, 788 NE2d 616, 758 NYS2d 267 [2003]) ... The threshold issue presented ... concerns the frrst question-whether Soto 17 was engaged in "cleaning" within the meaning of the statute. Id at 566. The determination of whether Nazario's work was covered by statute is at the heart of the § 240(1) and § 241 ( 6) analysis. Contrary to the First Department's opinion, therefore, whether or not Nazario was performing routine maintenance is properly preserved on appeal for review by this Court. There is no dispute Nazario was replacing inner components of lighting fixtures, i.e. light bulbs and ballasts- nothing more. The work had to be performed on weekends, since the building was fully occupied by the bank on week days. There was no "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" taking place; therefore, the threshold inquiry as to whether Nazario's work was covered by the Labor Law should have been considered below, and resulted in the dismissal ofNazario's § 240(1) and§ 241(6) claims. (R 254) Essential to recovery under Labor Law § 240(1) or § 241 ( 6) is whether or not the work performed is protected. Regardless of whether the issue of routine maintenance was raised by Knight's cross-motion, therefore, the Court has inherent authority to search the record and grant summary judgment where appropriate. Boss v. Integral Constr. Corp., 249 A.D.2d 214 (1st Dept. 1998); Dunham v. Hilco Constr. Co., 89 N.Y.2d 425 (1996). Knight asks this Court to consider the viability of Plaintiffs Labor Law claims, since Nazario's work was routine maintenance, unprotected by§ 240(1) or§ 241(6). See, e.g., Frank v City ofNew York, 211 A.D. 2d 478, 479 (1st Dept. 1995). In Esposito v. N.Y. City Indus. Dev. Agency, 1 N.Y.3d 526 (2003), this Court held replacement of component parts oflighting fixtures was "routine maintenance": Section 240 (1) applies where an employee is engaged "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." Although repairing is among the enumerated activities, we have distinguished this from "routine maintenance" (Smith v Shell Oil Co.,85 N.Y.2d 1000, 1002, 630 N.Y.S.2d 962, 654 N.E.2d 1210 [1995]). The work here involved replacing components that require replacement in the course of normal wear and tear. It therefore 18 !d. constituted routine maintenance and not "repairing" or any of the other enumerated activities. As for Labor Law § 241 (6) we have held it inapplicable outside the construction, demolition or excavation contexts (see Nagel v D & R Realty Corp., 99 N.Y.2d 98,752 N.Y.S.2d 581,782 N.E.2d 558 [2002]). Therefore, the maintenance work involved in this case fell outside that section's reach. In Picaro v. New York Convention Center, 97 A.D.3d 511 (1st Dept. 2012), the Court relied upon this Court's holding in Esposito, and reversed denial ofDefendant's motion pursuant to Labor Law § 240(1 ), determining plaintiff electrician performed routine maintenance not covered by § 240( 1) when he fell from a ladder after repairing a light fixture. citing Monaghan v 540 Inv. Land Co. LLC, 66 A.D.3d 605 (1st Dept. 2009). Plaintiff testified his work entailed changing the whole fixture, and that he would obtain new sockets and bulbs from the building's storage area to perform his work. The Court determined: ... plaintiff's work clearly involved "replacing components that require replacement in the course of normal wear and tear" (Esposito v New York City Indus. Dev. Agency, 1 NY 3d 526, 528, 802 NE2d 1080, 770 NYS2d 682 [2003]). Id at 512. On the basis of the nature of the Picaro's work, the Court held it was routine replacement. See also, Soriano v. St. Mary's Indian Orthodox Church of Rockland, Inc., 118 A.D.3d 524, 527 (1st Dept. 2014). There is no dispute Nazario's work- changing out light bulbs and ballasts for new energy efficient ones - did not involve fixture replacement. Plaintiff testified: ... My job, ... was ... removing the lens which is the grill, the bulbs, the pan, the ballasts, the sockets, pretty much everything that was in the fixture except for the actual housing, the inside housing ... I was taking off the lens cover to the fixture ... took off the bulbs ... removed the pan from the ballast cover . . . I had to unscrew where the 19 ballast cover is ... then disconnected the ballast from the feed from the BX wire in the ceiling. (R 243; 259-260) The nature of the work was also described by other witnesses, including Mr. Bicocchi of Jones Lang: . . . everything was replaced in kind. So you would take out the ballast and the bulb and replace it right then and there. Because the building was occupied, so you couldn't remove the fixture and come back another day. It had to be done at that moment ... (R 448-449) Mr. Patyak of Lime Energy also testified: A. . .. The existing fixture had the lamps removed, the existing lamps were removed, the existing ballast was removed, new energy efficient ballast was installed, new energy efficient lamps were installed. Q. Did that also involve rewiring of the fixtures, reconnection of wiring? A. Re-connection, yes; rewiring, no. (R 442) The Subcontract between Lime and Knight stated Knight was responsible for retrofitting existing light fixtures. See "Scope of Work" (R 911 ). The work, therefore, was routine maintenance, "replacing components that require replacement in the course of normal wear and tear" outside the protections of Labor Law § 240( 1 ). Esposito v. N.Y. City Indus. Dev. Agency, supra; See Konaz v. St. John's Preparatory School, 105 A.D.3d 912 (2d Dept. 2013), (building mechanic injured when he fell from a ladder while replacing a ballast in a light fixture fell in the category of routine maintenance. Plaintiffs work did not "constitute erection, demolition, repairing, altering, painting, cleaning, or pointing of a building within the meaning of Labor Law§ 240 (1).") 20 Since Nazario was not engaged in a covered activity under Labor Law §240( 1 ), the courts below should have dismissed his Labor Law claims as a matter of law. CONCLUSION For the reasons stated, we respectfully ask this Court to reverse the First Department's decision which, we submit, was not properly made for the reasons discussed herein, dismiss Plaintiff-Respondent Nazario's action in its entirety or, alternatively, deny his motion pursuant to Labor Law§ 240(1). We further ask that the Court reverse the grant of contractual indemnification to Defendants-Respondents Lime Energy and Jones Lang, and grant such other relief as it may determine is just and proper. y Submitted, ) )t/U_ AmyL. Fenno 21 Certification of Compliance The forgoing brief was prepared on a computer. A proportionally spaced typeface was used as follows: Name of Typeface: Time New Roman Point Size: 14 Line Spacing: Double The total of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citation, proof of service, certification of compliance or any authorized addendum containing statues, rules and regulations, etc. is 6,875 words. AmyL. Fenno 22 CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 500.l(f) and 500.13(a) of the New York Court of Appeals Rules of Practice, Third-Party Defendant-Appellant, KNIGHT ELECTRICAL SERVICES CORP. is a New York Domestic Corporation that has no parents, affiliates or subsidiaries. EXHIBIT ''A" SUPREME COURT, APPELLATE DIVISION FIRST DEPARTMENT JANUARY 14, 2016 THE COURT ANNOUNCES THE FOLLOWING DECISIONS: Tom, J.P., Renwick, Moskowitz, Manzanet-Daniels, Feinman, JJ. 15498 Justin Nazario, _ Plaintiff-Appellant, -against- 222 Broadway, LLC, et al., Defendants-Respondents. 222 Broadway, LLC, et al., Third-Party Plaintiffs-Respondents, -against- Knight Electrical Services Corp., Index 105608/11- Third-Party Defendant-Respondent-Appellant. [And Other Third-Party Actions] Ary~, Lustig & Sassower, P .c .. , New York (~_;,:Carl Lustig III of counsel), for appellant. O'Connor Redd L~P, Port Chester, {AmyL. Feno of counsel), for respondent-appellant. Lawrence, Worden, Rainis and Bard, P.C., Melville (Leslie McHugh of counsel), for 222 Broadway, LLC, and Jones Lang LaSalle Americas, Inc, respondents. Cerussi ' Spring, P.C., White Plains (Thomas F. Cerussi of counsel), for Lime Energy Co., respondent. Order, Supreme Court, New York County (Geoffrey p. Wright, J.), entered April 7, 2014, which denied plaintiff's motion for partial summary judqment on his Labor Law SS 240(1) and 241(6) claims, and, upon a search of the record, dismissed those claims, and granted defendants' motions for summary judgment on their contractual indemnification claims against third-p~rty defendant, modified, on the law, to reinstate the Labor LawS 240(1) claim and grant plaintiff's motion for partial summary judgment on that claim, and to deny defendant 222 Broadway~ LLC's (Broadway) motion for summary judgment on its contractual indemnification claim, and otherwise affirmed, without costs. The motion court erred in dismissing the Labor LawS 240(1) claim on the ground that third-party defendant (Knight) exclusively supervised and controlled plaintiff's work. ~[O]wners and contractors not actually involved in construction can be held liable, regardless of whether they exercise supervision or control over the w6rkn {Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003] [internal quotation marks and citation omitted]). Contrary to the motion court's reading of Blake, the duties of the owner and contractor cannot be delegated (id. at 286, 287) . Plaintiff established prima facie that the ladder from which he fell did not provide adequate protection pursuant to Labor Law 2 S 240(1). The evidence, including testimony from disinterested coworkers, shows that plaintiff was performing electrical work as part of a retrofitting or renovation, and was reaching up while standing on the third or fourth rung of a six-foot A-frame wooden ladder, when he received an .electric shock from an exposed wire. He fell to the floor, holding the ladder, which remained in an open, locked position when it landed (see Vukovich v 1345 Fee, LLC, 61 AD3d 533 [1st Dept 2009] [summary judgment granted on Labor Law S 240[1) claim, where plaintiff fell from an unsecured ladder after receiving electric shock while working as a pipe fitter]). While, as our concurring colleague points out, the ladder itself may not have been defective, it is not a requirement that a worker injured by a fall from an elevated height demonstrate that the safety device was defective or failed to comply with safety regulations (see Nilliam8 v 520 Madison . . Partnership, 38 AD3d 464, 4~5 [1st Dept 2007], citing Zimmer v Chemung County Performing Arts, ~5 NY2d 513, 523 [1985)). The worker's burden is to show that the absence of adequate safety devices, or the inadequacy of the safety devices provided to protect the worker from a fall, was a proximate cause of his or her injuries (see Smith v Hooker Chem. & Plastics Corp., 70 NY2d 994, 995 [1988] [absence of any safety device]; Rodriguez v 3 Forest City Jay St. Assoc., 234 AD2d 68 [1st Dept 1996] [inadequate safety device]). For instance, in Felker v Corning, Inc. (90 NY2d 219, 224 [1997]), the Court analyzed two different elevation-related risks involved in the acci4ent of a worker who, while- painting an alcoye area, fell from his ladder over an alcov~ wall and through a suspended ceiling. The first risk identified by ~he-Court, the inherent risk caused by raising the worker to a height above the alcove wall, was sufficiently addressed by the defendants who provided a stepladder as an enumerated safety device, and there were no allegations that it "was defective, that it slipped, tipped, was placed improperly or otherwise failed to support plaintiff" (id.). The second risk was that the worker needed to reach over the alcove to paint in an elevated open area; for this task, there was a "complete failure to provide any safety device,w and there was no view of the evidence which could lead to the conclusion that the absence of a safety device, violating Labor LawS 240(1), was not the proximate cause of-the accident (id. at 225) . Blake v Neighborhood Hous. Servs., as not~d by our concurring colleague, cautions that a case brought under Labor LawS 240(1) must show both a statutory violation, which includes 4 the failure to provide a sufficient safety device, and that the violation was a contributing factor to the injury (1 NY3d at 289) . The mere fact that a worker falls from a ladder or a scaffolding is not enough, by itself, to establish that the device did not provide sufficient protectien (id. ~citations omitted]). The worker must show that Labor Law 5 240(1) was violated and the violation was a proximate cau~e of the injury (id.}. In Blake, th~ plaintiff i~jured his ankle when the .upper portion of his extension ladder retracted while he was using it;· he testified that the ladder was stable and in proper working condition, and that he was not sure he had locked the extension clips in place before he ascended (id. at 283, 284}. Because the jury held that the ladder was adequate to have provided the necessary protection from a fall, the accident happened solely because of the way plaintiff used the ladder (id. at 284). The sole proximate cause of the accident was his neg-ligence (id. at 290) • Where a plaintiff makes a prima facie showing that a sufficient safety device was not provided, and its absence was a ~ontributing factor to the injury, the burden shifts to the defendant to show that there is a plausible view of the evidence that there was no statutory violation and that the plaintiff's 5 own acts or omissions were the sole cause of the accident (Blake, at 289, fn 8, citing Klein v City of Ne~ York, 89 NY2d 833, 835 [1996)). Here, plaintiff was injured when he was jolted by the electrical charge and although he hung onto the ladder, because it was not secured to something· stable, it and he fell to the ground (see Vukovich v 1345 Fee, LLC, supra, 61 AD3d at 533; Montalvo v J. Petrocelli Constr., Inc.·, 8 AD3d 173, 174 [1st Dept 2604); Nasile~ski v Museum of MOdern Art, 260·AD2d 271, 271 [1st Dept 1999]; see also Kijak v 330 Madison Ave. Corp., 251 AD2d 152, 153 [1st Dept 1998) ["well settled that fnilure to propei:'ly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of Labor LawS 240(1)")) . 1 The lack of a secure ladder· is a violation of Labor Law S 240 (1), and is a proximate cause of the accident (see Nise v 141 McDonald Ave., 297 AD2d 515, 516 [lst Dept 2002)). Our conclusion follows the reasoning in Blake, and is in harmony with our decision in DelRosario v United Nations Fed. Credit Union (104 AD3d 515 [1st Dept 2013)), where we held that 1 We note that one of plaintiff's coworkers averred that none of the workers, including plaintiff, was provided a safety belt, possibly an additional safety device to use while working on the ladders (id.). 6 the ladder on which the plaintiff was working was inadequate ~o prevent him from falling when he was struck by a live electrical wire and, as he pulled away from the wire, the ladder "wobbled and moved" and caused him to lose his balance and fall (id. at 515). In DelRosario, the inadequacy of.th~·-ladder was held to be a proximate cause of his injury (id.) .. We therefore disagree with our concurring ~olleague that our holding in DelRosario has caused a split among the Appellate Divisions or deviates from the teachings of the Court of Appeals. Defendants' arguments that plaintiff caused his own. injuries by working on the fixture without protective gloves before the· power supply was turned off could at most establish comparative negligence, which is not a defense to a Labor LawS 240(1) claim (see Stolt v General Foods Corp., 81 NY2d 918, 920 [1993]). Nor is there an issue of fact whether plaintiff's injuries were caused by a fall from a ladder. Notwithstanding that the records of plaintiff's visit to the emergency room refer merely to electrocution-related injuries without mentioning a fall from a ladder, and that plaintiff wrote on a medical form months later that his back injuries may have been caused by his lifting a machine and falling from a ladder, the evidence - which includes plaintiff's, his coworker's, and his foreman's testimony- that 7 he sustained his injuries in falling from a ladder is overwhelming (see Susko v 337 Greenwich LLC, 103 AD3d 434 [1st Pept 2013)). Knight's argument that plaintiff was not engaged in a activity.covered by Labor LawS 240(1) is ·unpreserved, and we decline to consider it. Contrary t·o Knight's contention, this ~is not a .purely legal issue apparent on tqe face of the record but requires for resolution facts not brought to plaintiff's attention on the motion11 (Rodriguez v Coalition for Father Duffy, LLC, 112 AD3d 407, 408 [1st Dept 2013] [internal quotation marks ·omitted]) . 2 In light of our grant of partial summary judqment to plaintiff on his Labor LawS 240(1) claim, we do not reach the issue whether the court correctly dismissed the Labor Law S 241(6) claim (see Fanning v Rockefeller Univ., 106 AD3d 484, 485 [1st Dept 2013]). 2 The concurring op~n~on questions whether any type of safety devices enumerated in Labor LawS 240(1), could adequately protect against the force of electricity which is capable of knocking down a worker from any location. It queries whether the Legislature intended that Labor LawS 240(1), designed to protect workers from the danger posed by the force of gravity, should be applied to the danger represented by the force of electricity. There is nothing to suggest, however, that falls froa elevated surfaces following contact with live electricity, should be carved out from the statute. 8 Defendants Lime Energy Co. (Lime) and Jones Lang Lasalle Americas, Inc. (Jones) are entitled as a matter of law to contractual indemnification by Knight, since plaintiff's injuries arose out. of the "Work" performed under the subcontract· between Lime and Knight, which obligated Knight to indemnify Lime, and Jones as Lime's "client," for claims,. liability, losses, and expenses "arising from the Work performed hereunder," and, in light of the unchallenged dismissal of the Labor Law S 200 and common-law negligence claims against said defendants, their liability is purely vicarious (see Rainer v Gray-Line Dev. Co., LLC, 11'1 AD3d 634 [1st Dept 2014]): Contrary to Knight's contention, the indemnity provision is not void under General Obligations Law S 5-322.1 because it reqUires Knight to indemnify Lime for its own negligence, since Lime was free of negligence (see Brown v Two Exch. Plaza Partners, 76 NY2d 172, 179 ( 1990). Broadway is not entitled to contractual indemnification by Knight since the indemnification clauses on which it relies are contained in contracts to which it.was not a signatory and in. which it was not named as an indemnitee (see Tonking v Port Autb. of N.Y. 'N.J., 3 NY3d 486, 490 [2004]; Sicilia v City of New York, 127 AD3d 628 (1st Dept 2015]). Nor is there any basis for a finding that Lime and Knight intended Broadway to be a third- 9 party beneficiary of their subcontract, which referred to a different entity as the property owner and did not mention Broadway (see Naughton v City of New York, 94 AD3d 1, 12 [1st Dept 2012)). We have considered the parties' remaining arguments for affirmative relief and find them unavailing. All concur except Tom, J.P. who concurs in a separate memorandum a·s follows: 10 TOM, J.P. (concurring) While I dis~gree with the majority's ruling and find there is a question of fact preventing the award of partial summary ·judgment on plaintiff's Labor Law S240 (1) claim, I am constrained, based on this Court's precedent, to concur with the court's final disposition. In Vukovich v 1345 Fee, LLC (61 AD3d 533 [1st Dept 2009]), we awarded summary judgment as to liability to a pipe fitter who fell from a ladder·after receiving an electric shock, reasoning that ~(t]he ladder provided to plaintiff was inadequate to prevent him from falling . and was a proximate cause of his injuries" ·(id. at 534·) . In Caban v Haria Estella Houses I Assoc., L.P. (63 AD3d 639, 639 [1st Dept 2009]), we upheld the award of summary judgment to an electrician who similarly sustained injury when he fell from a ladder ~s the result of an electric shock while •repairing malfunctioning exterior floodlights," rejec~ing the defendants' contention that the work was mere routine maintenance not covered by the statute. We previously held that the activity in which plaintiff was engaged at the time of injury - replacing ballasts in lighting fixtures - constitutes the repair of a building or structure within the contemp~ation of the statute (Piccione v 1165 Park Ave. 258 AD2d 351 [1st Dept 1999], lv dismissed 93 NY2d 957 11 [1999]). Relying on Vukovich and Caban, plainti~f· postulates that because he fell from a ladder after receiving an electric shock from an exposed.wire, it is axiomatic that the ladder on which he was standing failed to affo~d him with the necessary protectioh required by Labor LawS 240~1). Plaintiff concedes in his brief that the ladder furnished to him was not defective and tnat the several accounts he gave of the manner in which he.sustained injury are inconsistent. Nevertheless, he asserts that "[d]espite there being no apparent defects in the A-frame ladder from which plaintiff fell, and despite plaintiff's various and conflicting explanations on [sic] what caused him to fall, the fact that the ladder failed to protect him from falling was sufficient to establish liability in his favor under Labor Law S 240(1) ." While defendants devoted the bulk of their moving papers to the matter of indemnification, third-party defendant Knight Electrical Services Corp. did take issue with plaintiff's contention, expressly stating that defendants cannot be held statutorily liable if the ladder was not shown to be defective. This Court has held that recovery under Labor Law§ 240(1) is available where ~[t]he record establishes that the ladder provided to plaintiff was inadequate to the task of preventing 12 his fall when he came into contact with the exposed wire and was a proximate cause of his injury" (DelRosario v United NatioRs Fed. Credit Union, 104 AD3d 515, 515 [1st Dept 2013]). Thus, ou~ precedent supports plaintiff's stated basis for summary judgment as to liability. That ~aid, this'Cour.t's precedent c~nnot be reconciled with that of the Court of Appeals, which has made clear that merely because a worker falls from a safety device does not mean that, under a principle of strict· liability, recovery·under the statute is available. In Blake v Neighborhood Hous. Servs. of N.Y. City (1 NY3d 280, 288 [2003]), the Court of Appeals cautioned against "the mistaken belief that a fall from a scaffold or ladder, in and of itself, results in an award of ~amages to the injured party" (see also Beesimer v Albany Ave./Rte. 9 Realty, 216 AD2d 853, 854 [3d Dept 1995]). This pronouncement is clearly inimical to plaintiff's chief contention . . that the failure of the ladder to prevent his fall is sufficient to establish defendants' liability. To the cont~ary, as the majority here recognizes, the Court of Appeals instructs that in the absence of a statutory violation and any demonstration that the violation was a contributing cause of the fall, no prima facie violation of Labor Law S 240(1) is made out (Blake, 1 NY3d at 289); and in the absence of a prima facie case, plaintiff is 13 not entitled to summary judgment irrespective of the strength of defendants' opposition (CPLR 3212 [b]; Ayotte v Gervasio, 81 NY2d 106.2, 1063 [1993]). ·The majority correctly notes that a worker injured by· a fall from an elevated height is not necessarily requ~red to show that the safety device provided was defective, and must instead show that the absence of adequate safety devices or the inadequacy of the devices provided was a proximate cause of his or her injuries. Yet the majority holds defendants liable under Labor Law S 240(1) absent any proof that the safety device provided was a proximate cause of plaintiff's injuries. While failure to supply any safety device whatsoever constitutes a violation of the statute, record evidence is required to establish the need for such protective device, a point made plain in Izrailev v Ficarra FUrniture of Long Is. (70 NY2d·813, 815 [1987]), in which·the trial record contained ~unrebutted proofH that the plaintiff's decedent should have been provided with various items necessary to .perform electrical work on a malfunctioning sign. Likewise, in Quackenbush v Gar-Ben Assoc. (2 AD3d 824, 825 [2d Dept 2003]), "unrebutted evidenceu established that defendants failed to provide the plaintiff with proper protection to prevent a fall after sustaining an electric 14 shock. Here, the record on appeal contains no such unrebutted evidence, prompting plaintiff's resort to the conclusory assertion that the mere fact he fell from a ladder establishes that the safety devices furnished to him were inadequate to provide proper protection, the very proposition rejected·in Blake (1 NY3d at 288-289), which the majority ·concedes. Indeed, to recover under the statute, "a worker must demonstrate the existence of an elevation-related hazard con~ernplated by the statute and a failure to provide the worker with an adequate safety deviceH (Berg v Albany Ladder Co., Inc., 10 NY3d 902, 904 [2008]) .. To be clear, prior to this Court's holdings in Vukovich and DelRosario, all four Departments were unanimous in finding that a question of fact exists on the issue of liability under Labor Law S 240(1) when a plaintiff worker falls from an A-frame stepladder .. . . . as a result of an electrical shock, and where there is no evidence the ladder is defective and no record evidence of the need for another device (see Grogan v Norlite Corp., ·282 AD2d 781 [3d Dept 2001]; Donovan v CNY Consol. Contrs., 278 AD2d 881 (4th Dept 2000]; Neber v 1111 Park Ave. Realty Corp., 253 AD2d 376, 378 (1st Dept 1998]; Gange v Tilles Inv. Co., 220 AD2d 556, 558 [2d Dept 1995]). 15 The reason for this unanimity is obvious: It flows from the Court of Appe·als holdings in Blake and Izrailev. As th~ Third Department remarked in Grogan, "where, as here, there is no evidence that the ladder slipped, collapsed or was otherwise defective, the question of whether the ladder provided proper protection is a factual one and neither the injured worker nor the owner is entitled to summary judgme~t on a Labor LawS 240("1) claim" (282 AD2d at 782). Notably, in Gange, which this Court quoted approvingly in Weber, the Second Department elaborated: the fact that the plaintiff fell off of the ladder only after he sustained an electric shock does not preclude recovery under Labor LawS 240(1) for injuries sustained as a result of the fall from the ladder (see, Izrailev v Ficarra Furniture, 70 NY2d 813). However, the plaintiff is not entitled to summary judgment under Labor Law S 240(1) as there are questions of fact as to. whether, inter alia, the ladder, which was not shown to be defective in any way, failed to provide proper protection, and whether the plaintiff should have been provided with_adaitional safety devices (220 AD2d at 558) . Thus, this Court's more recent precedent represents. a clear split in appellate authority with both the Court of Appeals and the three other Departments, a fact that the majority, despite its hesita~ce to do so, must accept. 16 In short, pursuant to the Court of Appeals holdings and those of the three other Departments, for plaintiff to prevail in this matter he must present evidence - for example from an expert . - that he should have been pr9vided with additional safety devices and that the failure to do so was a contr.ibuting cause of the accident. Indeed, this is.precisely the type of proof put · forward in both Izrailev and Quackenbush. Moreover, whether a violation of section 240(1) was a contributinq cause of the accident is generally a jury question (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524 [1985)), and ~a directed verdict on the issue of liability is appropriately limited to those cases in wh~ch the only inference to be drawn from the evidence is that a failure to provide appropriate protective devices is the proximate cause of the plaintiff's injuries" (Weber, 253 AD2d at 377, citing Zimmer at 524). Because more evidence is needed to determine whether plaintiff should have been provided with additional safety devices, it would be inappropriate to draw such an inference from the evidence presented thus far. Accordingly, the majority's reliance on cases not involving an electric shock and which focus on unsecured ladders which were clearly inappropriate for the worker's task are not on point nor 17 particularly helpful (see e.g. Kijak v 330 Madison Ave. Corp., 251 AD2d 152 (1st Dept 1998]). While the majority notes that in DelRosario the inadequacy of the ladder was found to be a proximate cause of the plaintiff' a· injury, the· point is that such hqlding is contrary to the aathority requiring further evidence of the need for additional safety devices (see Izrailev, supra) or finding that in the absence of such evidence an issue of fact is presented (see Grogan, supra). Contrary to the majority's implication, I am not suggesting that all falls from elevated surfaces following contact with live electricity be carved out of the protections of Labor Law S240 (1). On the other hand, I am suggesting that the majority's holding here and our precedents in DelRosario and Vukovich have created a special class of decisions which, contrary to the foundational Court of Appeals holdings in this area, remove a plaintiff's quintessential burden to establish causation under the Labor Law. Here, the majority grants plaintiff summary judgment under S 240(1) solely upon plaintiff's fall from a ladder after receiving an electric·shock from an exposed wire without proof that the ladder was a contributing cause of plaintiff's injuries. The purpose of Labor LawS 240(1) was to 18 protect workers with safety devices working in elevated work sites and not to dispense with a party's burden of proof. As a further consideration, in cases where a risk due to an elevation-related hazard is demonstrated, recov.ery is predicated on the rationale that "one or more devices of the sort listed in section.240(1) would allegedly have prevented the injury" (Rocovich v Consolidated Edison Co., 78·NY2d 509, 514 [1991)). In this matter, it is. "uncontroverted fact that plaintiff's fall was initially precipitated by a shock from an exposed wire." Plaintiff concedes that his fall was not the result of any defect in the ladder and, inueed, has identified none. ··Unaddressed by the parties and not reached in any of the cases dealing.with falls involving electric shocks is the question of whether the Legislature intended that a statutory provision designed to protect the worker from the danger posed by the force of gravity (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993)) should be applied to the danger represent'd by the force of electricity. Put differently, it is far from clear that the provision of a device enumerated in Labor LawS 240(1), or any similar safety device, would adequately protect against a force quite capable of knocking a worker from even the best ladder or scaffold, as this matter illustrates. As noted in Narducci v 19 Manhasset Bay Assoc. (96 NY2d 259, 267 [2001], quoting Rocovich, 78 NY2d at 513 [external quotation marks omitted]), even "a violation of [Labor LawS 240(1)] cannot 'establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury.'" THIS CONSTITUTES THE DECISION AND ORDER OF TH~ SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JANUARY 14, 2016 20 EXHIBIT 118" At a Term of the Appellate Division of the Supreme Court held in and for the First Judicial Department in the County of New York on June 16, 2016. Present - Hon. Peter Torn, Justice Presiding, Dianne T. Renwick Karla Moskowitz Sallie Manzanet-Daniels Paul G. Feinman, Justices. -------------------------------------X Justin Nazario, Plaintiff-Appellant-Respondent, -against- 222 Broadway, LLC, et al., Defendants-Respondents. 222 Broadway, LLC, et al., Third-Party Plaintiffs-Respondents, -against- Knight Electrical Services Corp., Third-Party Defendant-Respondent -Appellant. [And other actions] -------------------------------------X M-969 Index No. 105608/11 Index No. 590740/11 Third-party defendant-respondent-appellant, Knight Electrical Services Corp., having moved for leave to appeal to the Court of Appeals from the decision and order of this Court, entered on January 14, 2016 (Appeal No. 15498), and for a stay of all trial proceedings pending hearing and determination of the Court of Appeals, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is granted, and this Court, pursuant to CPLR 5713, certifies that the following question of law, decisive of the correctness of its determination, has arisen, which in its opinion ought to be reviewed by the Court of Appeals: "Was the order of this Court, which modified the order of the Supreme Court, properly made?" (M-969) -2- June 16, 2016 This Court further certifies that its determination was made as a matter of law and not in the exercise of discretion. It is further ordered that all trial proceedings are stayed pending a decision from the Court of Appeals. ENTER: