Daquaro v. Modern Continental Construction Co.

Appellate Division of the Supreme Court of New York

Daquaro v. Modern Continental Construction Co.

8 A.D.3d 324, 777 N.Y.S.2d 707, 2004 N.Y. App. Div. LEXIS 7826

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 7, 2004

StatusPublished

Cited by1 cases

This text of 8 A.D.3d 324 (Daquaro v. Modern Continental Construction Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Daquaro v. Modern Continental Construction Co., 8 A.D.3d 324, 777 N.Y.S.2d 707, 2004 N.Y. App. Div. LEXIS 7826 (N.Y. Ct. App. 2004).

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Opinion

In an action, inter alia, to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals from so much of an order of the Supreme Court, Kings County (G. Aronin, J.), dated September 2, 2003, as denied its motion for conditional summary judgment on its third-party cause of action for contractual indemnification against the third-party defendant.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

In support of its motion for conditional summary judgment on its third-party cause of action for contractual indemnification, the defendant third-party plaintiff Modern Continental Construction Co., Inc. (hereinafter Modern), failed to establish its prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Since an issue of fact exists as to whether Modern was negligent, its motion was properly denied (see Patterson v New York City Tr. Auth., 5 AD3d 454 [2004]; Stevenson v Alfredo, 277 AD2d 218, 220 [2000]).

Furthermore, we decline Modern’s invitation to search the record and grant summary judgment in its favor dismissing the plaintiffs’ Labor Law § 240 (1) claim. A question of fact exists regarding whether the object which struck the plaintiff Vincent Daquaro fell “because of the absence or inadequacy of a safety device of the kind enumerated in the statute” (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]; cf. Quintavalle v Mitchell Backhoe Serv., 306 AD2d 454 [2003]; Orner v Port Auth. of N.Y. & N.J., 293 AD2d 517 [2002]). Therefore, summary judgment with respect to the Labor Law § 240 (1) claim is inappropriate (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Modern’s remaining contentions are without merit. Santucci, J.P., Smith, Crane and Fisher, JJ., concur.

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In an action, inter alia, to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals from so much of an order of the Supreme Court, Kings County (G. Aronin, J.), dated September 2, 2003, as denied its motion for conditional summary judgment on its third-party cause of action for contractual indemnification against the third-party defendant.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

In support of its motion for conditional summary judgment on its third-party cause of action for contractual indemnification, the defendant third-party plaintiff Modern Continental Construction Co., Inc. (hereinafter Modern), failed to establish its prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Since an issue of fact exists as to whether Modern was negligent, its motion was properly denied (see Patterson v New York City Tr. Auth., 5 AD3d 454 [2004]; Stevenson v Alfredo, 277 AD2d 218, 220 [2000]).

Furthermore, we decline Modern’s invitation to search the record and grant summary judgment in its favor dismissing the plaintiffs’ Labor Law § 240 (1) claim. A question of fact exists regarding whether the object which struck the plaintiff Vincent Daquaro fell “because of the absence or inadequacy of a safety device of the kind enumerated in the statute” (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]; cf. Quintavalle v Mitchell Backhoe Serv., 306 AD2d 454 [2003]; Orner v Port Auth. of N.Y. & N.J., 293 AD2d 517 [2002]). Therefore, summary judgment with respect to the Labor Law § 240 (1) claim is inappropriate (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Modern’s remaining contentions are without merit. Santucci, J.P., Smith, Crane and Fisher, JJ., concur.

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Bluebook (online)

8 A.D.3d 324, 777 N.Y.S.2d 707, 2004 N.Y. App. Div. LEXIS 7826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daquaro-v-modern-continental-construction-co-nyappdiv-2004.

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