
    [682 NE2d 950, 660 NYS2d 349]
    Raymond L. Felker, Jr., et al., Respondents, v Corning Incorporated et al., Respondents. Wellco, Inc., Defendant and Third-Party Plaintiff-Respondent, v John H. Cook, Jr., Painting Contractors, Inc., Third-Party Defendant-Appellant. (And Another Action.)
    Argued May 8, 1997;
    decided June 12, 1997
    
      POINTS OF COUNSEL
    
      Burke, Albright, Harter & Rzepka, L. L. P., Rochester (Johnson S. Albright II and Matthew D. Nafus of counsel), for third-party defendant-appellant.
    I. Is a plaintiff, involved in an unwitnessed accident, who has no recall of the events, entitled to summary judgment on Labor Law § 240 (1) liability on the bare proof that he was found near the base of a nondefective, properly placed ladder? (Shamir v Farash Corp., 210 AD2d 882; Turner v Eastman Kodak Co., 210 AD2d 883; Hodge v Crouse Hinds Div. of Cooper Indus., 207 AD2d 1007; Beesimer v Albany Ave./ Rte. 9 Realty, 216 AD2d 853; Zimmer v Chemung County 
      
      Performing Arts, 65 NY2d 513; Landry v Di Sarro Constr. Co., 149 AD2d 859, 74 NY2d 940; Barbuzano v Rem Gen. Constr., 202 AD2d 462; Miller v Long Is. Light. Co., 166 AD2d 564; Zeitner v Herbmax Sharon Assocs., 194 AD2d 414; Silva v 81st St. & Ave. A Corp., 169 AD2d 402, 77 NY2d 810.) II. Is a contractor entitled to common-law indemnification from its subcontractor without a determination that the subcontractor was negligent? (Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1.) III. Is a general contractor entitled to common-law indemnification from a subcontractor where the contractual indemnification clause between them is much narrower and more limited than the standard broad form indemnity clause? (Rowe v Great Atl. & Pac. Tea Co., 46 NY2d 62; Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211; Diamond Match Co. v Roeber, 106 NY 473; Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153; La Vack v National Shoes, 124 AD2d 352; Jensen v Chevron Corp., 160 AD2d 767; Schumacher v Lutheran Community Servs., 177 AD2d 568; Morel v City of New York, 192 AD2d 428; Brown v Two Exch. Plaza Partners, 76 NY2d 172.)
    
      Martin & Iati, Rochester (Valerie L. Barbie of counsel), for Corning Incorporated and another, respondents.
    I. Liability pursuant to Labor Law § 240 is proper where the ladder or scaffold did not meet the core objective of the statute. (Rocovich v Consolidated Edison Co., 78 NY2d 509; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Gordon v Eastern Ry. Supply, 82 NY2d 555.) II. Common-law indemnification is only dependent upon proof of control and supervision. (Kemp v Lakelands Precast, 55 NY2d 1032; Pazmino v Woodside Dev. Co., 212 AD2d 520; Guth v Mutual of N. Y., 213 AD2d 1066; Tambasco v Norton Co., 207 AD2d 618, 85 NY2d 857; Curtis v 37th St. Assocs., 198 AD2d 62; Malecki v Wal-Mart Stores, 222 AD2d 1010; Hayes v Crane Hogan Structural Sys., 191 AD2d 978.) III. Contractual provisions do not supersede right to common-law indemnification. (Hawthorne v South Bronx Community Corp., 78 NY2d 433; Brown v Two Exch. Plaza Partners, 76 NY2d 172; Mas v Two Bridges Assocs., 75 NY2d 680.) IV. Appellant is estopped from claiming that the grant of common-law indemnity was improper because it has complied with the order of the court. (Dolin v Passero-Scardetta Assocs., 110 AD2d 1051; Low v Peach, 179 AD2d 1094.) V. In the event the Court reverses the summary judgment pursuant to Labor Law § 240 (1), defendants are also entitled to relief despite the fact they have not appealed plaintiff’s grant of summary judgment. (Cover v Cohen, 61 NY2d 261; Sharrow v Dick Corp., 86 NY2d 54.)
    
      
      Krenzer & Galliher, P. C., Honeoye Falls (Cyril A. Krenzer of counsel), for Raymond L. Felker, Jr., and another, respondents.
    I. The courts below were correct in granting plaintiffs summary judgment based upon the Labor Law § 240 (1) cause of action. (Zimmer v Chemung County Performing Arts, 65 NY2d 513; Siragusa v State of New York, 117 AD2d 986; Spike v Hollands’ Lbr. Co., 198 AD2d 891; Barnaby v A. & C. Props., 188 AD2d 958; Guigliano v Seaport Mkt. Place, 160 AD2d 258; Desouter v HRH Constr. Corp., 216 AD2d 249.) II. The manner in which the incident occurred is not within the exclusive knowledge of plaintiff. (Madigan v United Parcel Serv., 193 AD2d 1102; Marasco v Kaplan, 177 AD2d 933.) III. Plaintiff’s recollection of the accident has remained unchanged. IV. There are no triable factual issues surrounding the happening of the accident. (Binninger v Grillo, 28 AD2d 1100; Rovner v Firemen’s Ins. Co., 33 Misc 2d 878; Matter of Tividar, 206 Misc 854; Zuckerman v City of New York, 49 NY2d 557.) V. Since neither Corning Incorporated or Wellco, Inc. appealed from the order of the Court below nor moved for leave to appeal, the summary judgment on the issue of liability must stand. (Hecht v City of New York, 60 NY2d 57; Graubard Mollen Dannett & Horowitz v Moskovitz, 86 NY2d 112; Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81.)
   OPINION OF THE COURT

Smith, J.

Plaintiff was injured when, on August 14, 1992, while employed at his job as a painter, he fell over the wall of an alcove and through a suspended ceiling to the floor nine feet below. We hold that under the facts presented here, Labor Law § 240 (1) was violated as a matter of law and the third-party defendant is liable for indemnification.

The property, known as Sullivan Park, was owned by defendant Corning Incorporated. Corning contracted with defendant Wellco to perform certain construction work on the facility. Wellco subcontracted with third-party defendant Cook to do painting work. Plaintiff was an employee of Cook.

Plaintiffs brought a personal injury action against Corning and Wellco, alleging negligence and a violation of Labor Law §§ 240, 241 and 200. Summary judgment was granted to plaintiffs against Corning and Wellco on the issue of liability, pursuant to Labor Law § 240 (1). Coming’s motion for common-law indemnity against Wellco was denied on the grounds of lack of evidence that Wellco directed or controlled the plaintiff painter. However, Coming’s motion for contractual indemnity against Wellco was granted. Wellco’s cross motion for contractual indemnity against Cook was denied, but its motion for common-law indemnity against Cook was granted. The Appellate Division affirmed the grant of summary judgment against Corning and Wellco, and the order of common-law indemnity against Cook. This Court granted Cook leave to appeal from the subsequent Supreme Court judgment awarding damages.

On this appeal, third-party defendant Cook contends that summary judgment on liability was improperly granted to the plaintiffs and further contends that the general contractor Wellco is not entitled to indemnification against Cook in the absence of a showing of negligence and in view of the contractual indemnification agreement between the parties.

We turn first to the issue of summary judgment. Plaintiff’s claim is that he fell from a ladder over the wall of an alcove and through a suspended ceiling as he attempted to paint an area of the alcove. At his deposition, he could not remember the accident. In support of the motion for partial summary judgment on the issue of liability, plaintiff included his affidavit which stated in part, "Upon information and belief, as I was reaching over the partition (alcove wall) to reach the area to be painted, I was caused to lose my balance on the ladder and fell to my left over the partition (alcove wall), through the suspended ceiling of the alcove to the floor eight feet or more below, sustaining personal injuries.”

In addition to the affidavit of the plaintiff, the motion for partial summary judgment was accompanied by the affidavit of a co-worker, Daniel Risavage, Jr., and the depositions of several persons. The affidavit of Risavage indicated that he went to the scene of the accident immediately upon being told that one of his co-workers had been injured. He found the plaintiff lying on the floor, barely conscious and bleeding and the ladder still in an upright position. Heidi Lynn Heichel-Baker, an employee of Sullivan Park, testified that several minutes.before the accident, she had passed the area where plaintiff was painting. She was working in the next room when she heard a noise and went to investigate. She saw plaintiff lying on the floor and a portion of the suspended ceiling hanging down. The evidence in support of the motion for partial summary judgment was sufficient to conclude that plaintiff fell from a ladder through the suspended ceiling of the alcove.

Section 240 (1) of the Labor Law provides that "All contractors and owners and their agents * * * who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

Section 240 (1) of the Labor Law was designed to place the responsibility for a worker’s safety squarely upon the owner and contractor rather than on the worker (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520). Section 240 (1) is to be liberally construed to achieve its objectives (65 NY2d, at 521). The record indicates that plaintiff fell as he reached from a ladder, over an elevated, open area in order to paint an area of. an alcove.

Here, there were two distinct elevation-related risks associated with the paint detail that plaintiff was directed to perform (see, Barnaby v A. & C. Props., 188 AD2d 958, 959). The first risk was created by the heed to elevate plaintiff to the height above the alcove wall, and the stepladder was the enumerated safety device provided to protect the worker from the risk inherent in having to work at a height over eight feet above ground level (id.). No allegations were raised that the ladder itself was defective, that it slipped, tipped, was placed improperly or otherwise failed to support plaintiff at that elevation. Thus, contrary to Cook’s claim, we are not concerned with the adequacy of this particular ladder as a device to safely elevate plaintiff.

More importantly, a second risk was created here by plaintiff’s need to reach over the eight-foot alcove wall and work over an elevated, open area. It is the contractor’s complete failure to provide any safety device to plaintiff to protect him from this second risk of falling over the alcove wall and through the suspended ceiling to the floor below that leads to liability under Labor Law § 240 (1) in this case (Zimmer v Chemung County Performing Arts, 65 NY2d 513, supra; Barnaby v A. & C. Props., 188 AD2d, at 959, supra).

A worker injured by a fall from an elevated worksite must also generally prove that the absence of or defect in a safety device was the proximate cause of his or her injuries (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524, supra; Duda v Rouse Constr. Corp., 32 NY2d 405, 410). Thus, in Zim mer, we held that an "owner or contractor who has failed to provide any safety devices for workers at a building worksite, and the absence of such devices is the proximate cause of injury to a worker” is "absolutely liable in damages for injuries sustained by such worker” (65 NY2d, at 519). There, a worker who had scaled a 31-foot vertical column so that he could direct the erection of a partition of a steel skeleton was injured when he lost his grip and fell. This Court reversed the lower courts and held that plaintiffs motion for a directed verdict should have been granted because no safety devices against a fall had been provided. The Court concluded further that there was no view of the evidence which could lead to the conclusion that the violation of section 240 (1) was not the proximate cause of the accident.

Similarly, in Gordon v Eastern Ry. Supply (82 NY2d 555) plaintiff sustained injuries when he fell from a ladder while cleaning a railroad car. This Court affirmed an order of the Appellate Division modifying the Supreme Court and granted summary judgment to plaintiff. In holding that Labor Law § 240 (1) had been violated, this Court stated that a prima facie case may be established when a plaintiff demonstrates that some risk of injury from a defendant’s conduct is foreseeable. A plaintiff "need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable” (82 NY2d, at 562).

We reject the argument that there is an issue of fact as to liability. Three days after the accident plaintiff stated that he fell from a ladder as he was attempting to paint. He also made the statement to a third person. In addition, the accident was heard by the person who found him lying on the floor. Under these circumstances and because no device was provided in this case to protect plaintiff from a fall through an open, elevated area above the alcove — the precise type of injury that Labor Law § 240 (1) is designed to prevent, on this record we are satisfied that the absence of any protection was the proximate cause of plaintiff’s injuries as a matter of law. As in Gordon, there is no view of the evidence here which could lead to the conclusion that the violation of Labor Law § 240 (1) was not the proximate cause of the accident (see also, Barnaby v A. & C. Props., 188 AD2d 958, supra).

Turning to the issue of indemnification, third-party defendant Cook contends that the evidence does not support the conclusion that it was negligent, that it has a contractual agreement to indemnify Wellco only if Cook is negligent, and that this agreement supersedes any common-law right to indemnification.

In Hawthorne v South Bronx Community Corp. (78 NY2d 433), this Court rejected a contention that contractual indemnification superseded common-law indemnification. There, two insurers had insured a subcontractor, one for contractual indemnification and the other for common-law indemnification. This Court held that the insurance companies were equally responsible for indemnification. Thus, the ability of a contractor to limit its contractual obligation to indemnify does not necessarily affect its duty to provide indemnification under the common law. Here, Cook supervised and controlled the work of the injured plaintiff and under these circumstances Cook is liable for common-law indemnification (Kemp v Lakelands Precast, 55 NY2d 1032; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1, 6-7.)

Accordingly, the judgment appealed from and the orders of the Appellate Division brought up for review should be affirmed, with costs.

Chief Judge Kaye and Judges Titone, Bellacosa, Levine and Ciparick concur; Judge Wesley taking no part.

Judgment appealed from and orders of the Appellate Division brought up for review affirmed, with costs.  