Defendant and third-party defendant Shimizu American Corporation ("Shimizu") and third-party defendant Forest Electric Company ("Forest") move for summary judgment dismissing the complaints as against them. Defendants Port Authority of New York & New Jersey ("PANY") and Dai-Ichi Kangyo Bank, Limited [*2]

("Dai-Ichi")^[FN1] cross-move for summary judgment dismissing plaintiffs' complaint against them, and for summary judgment for indemnification on their third-party complaint. Plaintiff Aly Mobarak ("Mobarak") cross-moves for summary judgment on his claim under Labor Law 240(1).

This lawsuit arises from an accident that occurred on July 17, 2001 at One World Trade Center. Mobarak was employed by Forest as an electrician. Forest was hired by Shimizu, a general contractor, in connection with a renovation project. The premises were owned by PANY, and leased to Dai-Ichi, which hired Shimizu to perform the renovation.

Mobarak alleges that he was directed by his foreman, a Forest employee, to run an electrical conduit in the space above a drop ceiling on the forty-ninth floor. Mobarak worked together with another Forest employee; other tradesman, not employed by Forest, also were working in the area. Mobarak testified at deposition that he used a wooden eight foot A-frame ladder provided by his employer. His foreman testified that he saw Mobarak immediately after the accident, and he claims that he saw a six foot A-frame ladder lying on its side nearby. When asked if it had rubber feet, he replied "It was all wood". Deposition Transcript of Richard Gesualdi, annexed to Notice of Motion at Exhibit F, 77. Forest did not assign Mobarak a specific ladder, but made ladders of various sizes available to the workers. The foreman testified that Forest held safety meetings for its employees. The foreman said that employees were told to inspect ladders and make certain that they did not have broken rungs, and not to stand on the top step, saying "If you have to go on the top step, you need a bigger ladder." Id., at 54. He had no knowledge with respect to how Mobarak used the ladder, or what caused his accident. Id., at 90.

At the time of the accident, Mobarak was working next to a wall, and he leaned the ladder against the wall because it was in a tight spot. He was standing on the fifth or sixth rung. His head and arms were above the drop ceiling, which was approximately eight feet above the floor, when the ladder slipped out from under him and he fell. His arm was cut, and a tourniquet was applied to stop the bleeding. He claims that he suffered other serious injuries as well.

Shimizu kept the contracts between it and Dai-Ichi and Forest on the work-site, and they were lost in the World Trade Center Disaster of September 11, 2001. A copy of Shimizu's contract with Forest ("Forest Contract," annexed to the PANY/Dai-Ichi Notice of Cross-Motion as Exhibit A to Exhibit K) was produced in connection with this lawsuit, but only an unexecuted copy of a contract between Shimizu and Dai-Ichi ("Dai-Ichi Contract," annexed to the PANY/Dai-Ichi Notice of Cross-Motion as Exhibit B to Exhibit K) was produced.

The Forest Contract contains an indemnification provision, whereby it agreed to indemnify Shimizu and the "Owner" for claims or damages arising from bodily injury to the extent said injury is caused or alleged to be caused in whole or in part by a negligent act or omission by Forest, or anyone directly or indirectly in its employ. The contract does not define the term "Owner", and Forest contends that the term is vague because it could refer only to Dai-Ichi, or only to PANY, and it might not refer to both.

Shimizu denies that the Dai-Ichi Contract is authentic, and contends that it may not be the final version of the agreement. Moreover, Shimizu points to the text of the document which [*3]defines the Owner as Dai-Ichi (among other, presumably related, Japanese banking entities), and does not mention PANY. The witness Shimizu produced for deposition knew very little about the project, and did not know who hired the company to work in the World Trade Center, or any particulars regarding the agreement. Therefore, a question of fact remains with respect to the specific terms of the agreement, and summary judgment on the claim for contractual indemnity against Shimizu cannot be granted.

Mobarak commenced this action to recover for his injuries under Labor Law §§ 200, 240(1) and 241(6), and under a common law negligence theory. PANY and Dai-Ichi allege that they are entitled to common law and contractual indemnification from both Shimizu and Forest (PANY and Dai-Ichi are represented by the same counsel, as are Shimizu and Forest).

Defendants move to dismiss Mobarak's complaint in its entirety. With respect to the Labor Law claims, they argue that there can be no liability because Mobarak was the sole proximate cause of his own injury. PANY and Dai-Ichi further argue that they cannot be liable under a common law negligence theory, or under Labor Law § 200, because they did not direct or supervise his work (Mobarak has withdrawn his claim for common law negligence as against them). There is no opposition to defendants' motions to dismiss the claims under Labor Law § 241(6).

Defendants rely principally upon the decision of the Appellate Division, First Department in Meade v Rock-McGraw, Inc., 307 AD2d 156 (1st Dept 2003). In that case, the court affirmed the trial court's denial of plaintiff's motion for summary judgment under Labor Law § 240(1), also known as the "Scaffold Law", where plaintiff fell when an A-frame ladder he had leaned against a wall slid out from under him. The plaintiff's supervisor had testified that, in his opinion, the plaintiff should have used a taller ladder, and that should have known better than to use an A-frame ladder in the closed position. The trial court held that plaintiff had established a prima facie case for liability, but that defendants had raised a triable issue of fact as to whether plaintiff's misuse of the ladder was the sole proximate cause of his injuries.

In the present case, there is conflicting testimony as to whether Mobarak used a six foot or an eight foot ladder. There is no evidence, however, that Mobarak's misuse of the ladder was the sole proximate cause of his injury. The foreman testified that workers were warned to get a bigger ladder if they need to stand on the top rung, but there is no testimony that Mobarak was on the top rung. And unlike the Meade case, there is no evidence here (apart from the opinions of counsel) that Mobarak misused the ladder by leaning it against a wall. Defendants incorrectly extrapolate from the Meade case a blanket requirement that there can be no liability under § 240(1) where the plaintiff fell from an A-frame ladder used in the closed position.

"Labor Law § 240(1) requires that safety devices, such as ladders, be so constructed, placed and operated as to give proper protection' to a worker". Klein v City of New York, 89 NY2d 833, 834-835 (1996). "The failure to properly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of Labor Law § 240(1)." Wasilewski v Museum of Modern Art, 260 AD2d 271 (1st Dept 1999). Here, Mobarak fell when the ladder, which had no rubber feet and was not otherwise secured, slipped out from under him, and there is no evidence that the accident was caused solely by his improper use of the ladder. Accordingly, he has made a prima facie showing that defendants are liable under the Scaffold Law, and defendants have not raised a triable issue of fact requiring a jury trial.

With respect to the motion by Shimizu and Forest to dismiss the third party complaint, it [*4]must be denied because the vicarious claims under the Labor Law against PANY and Dai-Ichi remain. PANY and Dai-Ichi have established that they exercised no supervision or control over Mobarak's work, and this role was filled entirely by Shimizu and Forest.

With respect to the Dai-Ichi Contract, it is enforceable even though a final, signed copy was not produced. Shimizu contends that the executed copy was lost in the World Trade Center disaster. However, there is objective evidence that the parties intended to be bound by the Dai-Ichi Contract because Shimizu performed its duties under it. Flores v Lower East Side Service Center, Inc., 4 NY3d 363 (2005). The witness Shimizu presented for deposition had no knowledge of any alternative agreement, and Shimizu presents no evidence to rebut the implication that its performance under the Dai-Ichi Contract manifests the intention to be bound by it. Moreover, Shimizu admits that it was responsible for overall supervision of the work site, and that it was responsible for ensuring that the work was performed properly and safely. The testimony shows that Forest directly supervised Mobarak, but questions of fact remain regarding Shimizu's role such that its motion to dismiss the common law indemnification claims against it cannot be granted. The claim for common law indemnification over Forest is dismissed under Workers Compensation Law § 11, because Mobarak was a Forest employee, and there is no allegation that he sustained a "grave injury" as defined in the statute.

On these motions, Shimizu and Forest argue that Mobarak's failure to exercise due care was a factor causing his injury (it was not the sole factor, supra); if they are proven correct at trial, Forest and Shimizu must indemnify Dai-Ichi even under the restrictive interpretation they urge as to who is an "Owner" under the contracts. Forest also would be required to indemnify PANY, which is the "Owner" under the ordinary meaning of that term, there being no evidence of ambiguity. Accordingly, it hereby is

ORDERED that the motion by third-party defendants for summary judgment is granted to the extent that Mobarak's claim under Labor Law § 241 (6) is dismissed as against defendant Shimizu; the claim for common law indemnity as against Forest is dismissed; and the motion is otherwise denied; and it further is

ORDERED that Mobarak's cross-motion for partial summary judgment as to liability against defendants PANY, Dai-Ichi and Shimizu under Labor Law § 240 (1) is granted; and it further is

ORDERED that the cross-motion for summary judgment by PANY and Dai-Ichi is granted to the extent that Mobarak's claims for common law negligence and under Labor Law §§ 200 and 241(6) are dismissed as against them, and it otherwise is denied; and it further is

ORDERED that counsel shall appear in Part 55 for a pre-trial conference on April 9, 2007 at 2 PM.

Dated: March, 2007

ENTER:

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J.S.C.