Baczyk v. Park 25th Associates

261 A.D.2d 180, 690 N.Y.S.2d 14, 1999 N.Y. App. Div. LEXIS 5293

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1999
• Status: Published

Opinion

—Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered September 12, 1997, which, inter alia, granted defendants’ motion for summary judgment insofar as it sought dismissal of plaintiffs Labor Law § 240 (1) and § 241 (6) causes of action, but denied defendants’ motion for summary judgment insofar as it sought dismissal of plaintiffs Labor Law § 200 and common-law claims; denied that branch of defendant and third-party plaintiffs’ summary judgment motion for a conditional judgment against the third-party defendant based on contractual and common-law indemnity; and denied plaintiffs cross motion for summary judgment upon his Labor Law § 240 (1) and § 241 (6) claims, unanimously affirmed, without costs.

Because the record raises factual issues as to whether negligence by defendants caused plaintiffs accident, the motion court properly denied defendants’ motion to dismiss plaintiffs Labor Law § 200 and common-law negligence claims. The same issues also warranted the denial of defendants’ motion for an award of conditional judgment against the third-party defendant on contractual and common-law indemnity theories (see, Smith v Cassadaga Val. Cent. School Dist., 178 AD2d 955; see also, City of New York v Consolidated Edison Co., 198 AD2d 31, lv denied 83 NY2d 757).

Also proper was the motion court’s dismissal of plaintiffs Labor Law § 240 (1) and § 241 (6) claims, since the injuries sustained by plaintiff did not result from either a gravity-related risk within the contemplation of Labor Law § 240 (1) or a code violation within the contemplation of Labor Law § 241 (6) (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rocovich v Consolidated Edison Co., 78 NY2d 509; Dias v Stahl, 256 AD2d 235). Concur — Sullivan, J. P., Williams, Wallach, Rubin and Mazzarelli, JJ.