Ertl v. Ciminelli-Cowper Co.

288 A.D.2d 946, 732 N.Y.S.2d 206

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 2001
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied those parts of the motion of defendants Ciminelli-Cowper Co., Inc. (Ciminelli-Cowper) and Millard Fillmore Suburban Hospital (Hospital) and the cross motion of defendant John W. Danforth Company (Danforth) seeking summary judgment dismissing the common-law negligence and Labor Law § 200 claims against CiminelliCowper and Danforth. Those defendants failed to establish as a matter of law that they did not supervise, direct, or control the worksite and, in any event, plaintiffs raised a triable question of fact on that issue (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 506). Because plaintiffs alleged a violation of a regulation mandating compliance with concrete specifications, the court properly denied defendants’ motion and cross motion for summary judgment seeking dismissal of the Labor Law § 241 (6) cause of action (see, Ross v Curtis-Palmer HydroElec. Co., supra, at 501-505). Finally, the court properly denied the motions of Ciminelli-Cowper and the Hospital and third-party defendant Buffalo Wholesale Supply Company, Inc., d/b/a Niagara Insulations, Inc., and the cross motion of Danforth seeking a conditional order of common-law indemnification. An issue of fact exists whether those parties are responsible for the accident (see, Rissel v Nomew Energy Supply, 281 AD2d 880, 881; Colyer v K Mart Corp., 273 AD2d 809, 809-810). We have considered the remaining contentions of the parties and conclude that they lack merit. (Appeals from Order of Supreme Court, Erie County, Fallon, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Hurlbutt, Kehoe and Lawton, JJ.