CUNNINGHAM, III, EDWARD v. LECHASE CONSTRUCTION

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

1078 CA 11-00958 PRESENT: SCUDDER, P.J., SMITH, CENTRA, GREEN, AND GORSKI, JJ.

EDWARD CUNNINGHAM, III, PLAINTIFF-APPELLANT,

V ORDER

LECHASE CONSTRUCTION, FREDERICO WRECKING CO., INC., AND FRIENDS OF FINGER LAKES PERFORMING ARTS CENTER, INC., DEFENDANTS-RESPONDENTS. -------------------------------------------- FREDERICO WRECKING CO., INC., THIRD-PARTY PLAINTIFF-APPELLANT,

V

CONTOUR ERECTION AND SIDING SYSTEMS, INC., THIRD-PARTY DEFENDANT-RESPONDENT. -------------------------------------------- LECHASE CONSTRUCTION SERVICES, LLC AND FRIENDS OF FINGER LAKES PERFORMING ARTS CENTER, INC., THIRD-PARTY PLAINTIFFS-APPELLANTS,

CONTOUR ERECTION AND SIDING SYSTEMS, INC., THIRD-PARTY DEFENDANT-RESPONDENT.

MAXWELL MURPHY, LLC, BUFFALO (ALAN D. VOOS OF COUNSEL), FOR PLAINTIFF-APPELLANT.

BROWN & TARANTINO, LLC, BUFFALO (ANN M. CAMPBELL OF COUNSEL), FOR DEFENDANTS-RESPONDENTS AND THIRD-PARTY PLAINTIFFS-APPELLANTS.

MACKENZIE HUGHES LLP, SYRACUSE (JENNIFER P. WILLIAMS OF COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT.

Appeals from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered November 24, 2010 in a personal injury action. The order, inter alia, denied the motion of plaintiff for partial summary judgment on liability pursuant to Labor Law § 240 (1), granted those parts of the motions of defendants-third-party plaintiffs and third-party defendant seeking summary judgment dismissing the complaint, and granted that part of the motion of third-party defendant seeking summary judgment dismissing the third-party -2- 1078 CA 11-00958

complaints.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying those parts of the motions of defendants-third-party plaintiffs and third-party defendant seeking summary judgment dismissing the Labor Law § 240 (1) claim and the Labor Law § 241 (6) claim to the extent that it is premised on a violation of 12 NYCRR 23-3.3 (h), reinstating those claims and denying that part of the motion of third-party defendant seeking summary judgment dismissing the third-party complaints and reinstating the third-party complaints, and as modified the order is affirmed without costs (see Charney v LeChase Constr., ___ AD3d ___ [Dec. 23, 2011]).

Entered: December 23, 2011 Frances E. Cafarell Clerk of the Court