DiPilato v. H. Park Central Hotel, L.L.C.
Opinion of the Court
Plaintiff, an electrician’s helper employed by third-party defendant Angel, was injured when the passenger elevator in which he and several other construction workers were riding, in the hotel owned by HPC then undergoing extensive renovation, plunged approximately 18 floors to the elevator pit below.
The Labor Law § 240 (1) cause of action was properly dismissed because the elevator was not “an inadequate . . . protective device designed ‘to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person’ ” (Lindstedt v 813 Assoc., 238 AD2d 386, 387 [1997], lv dismissed 90 NY2d 1007 [1997], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). Dismissal of the section 200 and common-law negligence claims against HPC was properly denied because there are triable is
VJB’s cross motion for summary dismissal of the section 200 and common-law negligence causes of action was properly denied. VJB, as the construction manager on the project, designated where work would be performed and determined which passenger elevators could be used by the construction workers despite HPC’s purported directive that only freight elevators were to be used by the workers. There were also triable issues as to whether VJB had notice of the defective condition of the elevator in light of the multiple reported instances of malfunctioning and the testimony of third-party defendant’s workers that problems with the hotel’s elevators were common during the renovation project.
Summary dismissal of the third-party complaint was in error. The contract entered into between HPC and Angel clearly manifested an intention for the latter to indemnify VJB (L.B. Smith, Inc. v Bradley & Williams, 58 NY2d 672 [1982]; Margolin v New York Life Ins. Co., 32 NY2d 149, 153 [1973]).
We have considered the parties’ remaining contentions for affirmative relief and find them unavailing. Concur—Mazzarelli, J.P., Andrias, Friedman, Sweeny and Catterson, JJ.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.