Edholm v. Smithtown DiCanio Organization, Inc.

217 A.D.2d 569, 629 N.Y.S.2d 86, 1995 N.Y. App. Div. LEXIS 7717

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1995
• Status: Published

Opinions

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Newmark, J.), dated August 4, 1994, as denied his motion for partial summary judgment on the issue of liability under Labor Law § 240 (1), and the defendant third-party plaintiff Smithtown DiCanio Organization, Inc., cross-appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment against the third-party defendant Graco Construction Corp. on the issue of indemnification.

Ordered that the order is modified, on the law, by deleting the provision thereof which denied the plaintiff’s motion for partial summary judgment on the issue of liability under Labor Law § 240 (1) and subsituting therefor a provision granting the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable to the plaintiff and the third-party defendant Graco Construction Corp. by the defendant Smithtown DiCanio Organization, Inc.

The plaintiff was entitled to partial summary judgment on the issue of liability under Labor Law § 240 (1). The plaintiff submitted unrefuted proof that he was injured because the roof trusses upon which he was standing collapsed due to excessive weight (see, Richardson v Matarese, 206 AD2d 353; Lagzdins v United Welfare Fund-Sec. Div., 77 AD2d 585; see also, Bras v Atlas Constr. Corp., 166 AD2d 401; LaLima v Epstein, 143 AD2d 886) and that no safety devices were operating to prevent the collapse or the plaintiff’s fall (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513).

However, the Supreme Court correctly denied the motion of the defendant Smithtown DiCanio Organization, Inc., for summary judgment on the issue of common law indemnification against Graco Construction Corp. as there were questions of fact as to which of the various contractors shared responsibility for this accident (see, Kelly v Diesel Constr. Div., 35 NY2d 1; Draiss v Salk Constr. Corp., 201 AD2d 698; McNair v Morris Ave. Assocs., 203 AD2d 433; Young v Casabonne Bros., 145 AD2d 244). Bracken, J. P., Copertino and Hart, JJ., concur.