Carboy v. Cauldwell-Wingate Co. , 841 N.Y.S.2d 20 ( 2007 )

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered February 27, 2006, which, to the extent appealed from, granted the motion of third third-party defendant Consolidated Electric Construction Co. to dismiss the claim of third third-party Cauldwell-Wingate Company, Inc. for indemnification and contribution, reversed, on the law, without costs, the motion denied and the matter remanded for further proceedings.

Appeal from order, same court and Justice, entered August 31, 2006, which denied Cauldwell-Wingate’s renewal motion, dismissed, without costs, as academic in light of the foregoing.

On February 6, 2001, plaintiff, Cornelius Carboy, Jr., who was employed by Skyline Sheet Metal as a draftsman and was assigned to work at the soon-to-be-opened fitness center in the World Financial Center, was injured when he walked through the double glass doors that served as the entrance of the fitness center, took two steps and fell into what he described as “one big area and it was one big hole.” It is undisputed that Consolidated, the electrical subcontractor, was installing recessed lighting in the floor of the fitness center, which necessitated digging shallow, 12-inch-wide trenches in the floor. Section 7 of Consolidated’s contract with Cauldwell, the construction manager, contained an indemnification clause that required Consolidated to indemnify Cauldwell for any injuries “arising directly or indirectly” out of Consolidated’s work.

In granting Consolidated summary judgment dismissing Cauldwell’s third-party claim for contractual indemnification, the motion court found that Cauldwell merely assumed that plaintiff fell in one of the trenches dug by Consolidated and failed to controvert extensive evidence that plaintiff fell in a large hole separate from Consolidated’s trench. However, viewing the evidence in a light most favorable to Cauldwell, the record raises questions of fact as to whether the trench dug by Consolidated was actually the hole into which plaintiff fell.

Although Cauldwell’s records do include a notation that the ceramic and stone contractor chopped marble in the lobby, its project manager Chris Norris, who supervised construction at the site, maintained this referred to “marble on the wall in the reception area.” The evidence supports a reasonable inference that the only reason the floor was being “chopped” in the lobby was in support of Consolidated’s electrical work and, although Norris was unclear on the subject, it is undisputed that it was Consolidated’s responsibility to cover any holes or trenches it had dug. Moreover, given plaintiffs testimony that there was an electrician working in the area at the time he fell, that the hole or trench was 20 feet wide, and that there were no other trenches or holes in the area, a reasonable inference is that Consolidated, the only electrical subcontractor on the site, created the condition that resulted in the accident (see Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743, 744-745 [1986]). As for Consolidated’s contention that the trench it created was in a different location than the one into which plaintiff fell, there is no clear agreement as to the placement of the trench or hole with respect to the glass doors. What is undisputed is that plaintiff saw an electrician working in the area and that he saw only one hole that was approximately 20 feet in length. This testimony comports with the testimony of Consolidated’s foreman Robert Perracca that Consolidated dug a 20-to-25-foot curved trench, and any issues as to proximity are questions for the trier of fact.

In light of the foregoing, the question of whether Cauldwell’s motion to renew was improperly denied has been rendered academic. Concur—Andrias, J.P., Nardelli and Sweeny, JJ.