FRESCO v. 157 EAST 72ND STREET CONDOMINIUM

Plaintiff was injured in the eye when a nail bounced up while he was hammering it through a precut metal plate into a block of wood. Plaintiff's case against the general contractor was submitted to the jury on theories of common-law negligence and a violation of Labor Law § 241 (6) based on 12 NYCRR 23-1.8 (a), which requires the furnishing of eye protection equipment to employees who, inter alia, are "engaged in any ... operation which may endanger the eyes." The jury found for plaintiff on both theories, apportioning fault 33% against the general contractor, 46% against the employer and 21% against plaintiff. The general contractor argues that it was error to submit the question of its fault to the jury in view of Justice Weissberg's pretrial order granting it summary judgment on its cause of action against the employer for contractual indemnification, based on findings that it exercised no supervisory control over plaintiff and could not be held at fault simply because it supplied plaintiff with the nail.

As this Court is not bound by any law of the case made by Justice Weissberg's pretrial order (see Grullon v City of New York, 297 A.D.2d 261, 265 [2002]), we have reviewed the record, and, upon such review, find that it is bereft of any evidence of fault on the part of the general contractor. Indeed, plaintiff implicitly admitted as much by consenting to dismissal of his cause of action for violation of Labor Law § 200. Plaintiff submitted no evidence that defendant had the right to control his work, or in fact controlled the injury-producing activity, or had actual or constructive notice that his employer did not provide safety goggles (see Lally v JGN Constr. Corp., 295 A.D.2d 148 [2002], lv denied 99 N.Y.2d 504 [2002]). Accordingly, we modify the judgment so as to dismiss plaintiff's cause of action for common-law negligence (see id.). Further modification of the judgment on this basis is not necessary since the 33% apportionment against the general contractor recited in the judgment was rendered ineffective by the decretal paragraph directing the employer to fully indemnify the general contractor.

That decretal paragraph need not be disturbed simply because it does not indicate whether the employer is being held liable for contractual or common-law indemnification. The general contractor is liable to plaintiff for the full amount of plaintiff's damages, less plaintiff's comparative fault, by reason of the violation of Labor Law § 241 (6). Whether an activity is protected by 12 NYCRR 23-1.8 (a) requiring the furnishing of eye protection equipment is a jury question that turns on whether a particular activity involves a foreseeable risk of eye injury (see Cappiello v Telehouse Intl. Corp., 193 A.D.2d 478, 480 [1993]). Here, there is ample evidence showing that the injury plaintiff sustained was foreseeable. However, there is no evidence the failure to furnish eye protection equipment was the general contractor's fault. Accordingly, the general contractor's liability under Labor Law § 241 (6) is purely vicarious (see Rizzuto v Wenger Contr. Co., 91 N.Y.2d 343, 350 [1998]), the employer cannot argue that the general contractor is being indemnified for its own negligence in violation of General Obligations Law § 5-322.1, and the general contractor is entitled to contractual indemnification from the employer. The general contractor is also entitled to common-law indemnification, there being ample evidence that plaintiff suffered a grave injury in the form of "permanent and severe facial disfigurement" (Workers' Compensation Law § 11).

Since the appeal from the judgment brings up for review both the grave injury issue as well as the issue of the general contractor's fault, we dismiss as academic the employer's appeal from the order denying its motion to renew the pretrial motions for summary judgment decided by Justice Weisberg. The order denying the employer's motion to resettle the judgment is nonappealable (see State of New York v Rice Mohawk U.S. Constr. Co., 262 A.D.2d 114, 116 [1999]).

The general contractor's argument that it was denied a fair trial when plaintiff's safety expert was allowed to comment on OSHA regulations is unpreserved (see Matter of Antonio Tyrone B., 298 A.D.2d 128 [2002]), and, in any event, without merit.

Plaintiff agrees that the award of future medical expenses should be reduced as above indicated, and we find that the awards of past and future pain and suffering deviate materially from what is reasonable compensation under the circumstances to the extent indicated (cf. Gonzalez v Lovett Assoc., 252 A.D.2d 355 [1998], lv denied 92 N.Y.2d 816 [1998]).

We have considered the parties' remaining arguments for affirmative relief and find them to be unavailing.