Fumo v. NAB Construction Corp.

Appellate Division of the Supreme Court of New York

Fumo v. NAB Construction Corp.

289 A.D.2d 442, 734 N.Y.S.2d 631, 2001 N.Y. App. Div. LEXIS 12972

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

DecidedDecember 24, 2001

StatusPublished

Cited by4 cases

This text of 289 A.D.2d 442 (Fumo v. NAB Construction Corp.) 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

Fumo v. NAB Construction Corp., 289 A.D.2d 442, 734 N.Y.S.2d 631, 2001 N.Y. App. Div. LEXIS 12972 (N.Y. Ct. App. 2001).

Pincite

Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated August 9, 2000, which denied its motion for summary judgment dismissing the complaint and granted the plaintiffs’ cross motion for partial summary judgment on the issue of liability on their cause of action pursuant to Labor Law § 240 (1).

[443]*443Ordered that the order is modified, on the law, by deleting the provision thereof granting the cross motion and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, without costs or disbursements.

The injured plaintiff, an employee of Massand Engineering, was injured when a ladder that he was using to descend from a scaffold to a barge beneath the Tappan Zee Bridge, collapsed. The defendant, NAB Construction Corporation (hereinafter NAB), had contracted with the New York State Thruway Authority to replace the middle lane of the Tappan Zee Bridge, and the injured plaintiff was inspecting the work performed by NAB at the time of the accident. It is unclear from the record which entity Massand Engineering had contracted with to perform the inspection work, as well as whether NAB had any supervisory authority with respect to the inspection work. Accordingly, there are material questions of fact with respect to whether NAB was a “contractor” responsible for the injuries pursuant to Labor Law § 240 (1). Since NAB is not an owner, and it cannot be ascertained from the record if it was either a general contractor or a statutory agent of the owner or general contractor, the plaintiffs should not have been granted summary judgment on their Labor Law § 240 (1) claim (see Russin v Picciano & Son, 54 NY2d 311; D’Amico v New York Racing Assn., 203 AD2d 509).

Moreover, since NAB failed to establish its entitlement to judgment as a matter of law on the common-law negligence claims, summary judgment dismissing those claims was properly denied (see, e.g. Xirakis v 1115 Fifth Ave. Corp., 226 AD2d 452; Lynch v City of New York, 209 AD2d 590). S. Miller, J. P., Friedmann, Adams and Cozier, JJ., concur.

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In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated August 9, 2000, which denied its motion for summary judgment dismissing the complaint and granted the plaintiffs’ cross motion for partial summary judgment on the issue of liability on their cause of action pursuant to Labor Law § 240 (1).

[443]*443Ordered that the order is modified, on the law, by deleting the provision thereof granting the cross motion and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, without costs or disbursements.

The injured plaintiff, an employee of Massand Engineering, was injured when a ladder that he was using to descend from a scaffold to a barge beneath the Tappan Zee Bridge, collapsed. The defendant, NAB Construction Corporation (hereinafter NAB), had contracted with the New York State Thruway Authority to replace the middle lane of the Tappan Zee Bridge, and the injured plaintiff was inspecting the work performed by NAB at the time of the accident. It is unclear from the record which entity Massand Engineering had contracted with to perform the inspection work, as well as whether NAB had any supervisory authority with respect to the inspection work. Accordingly, there are material questions of fact with respect to whether NAB was a “contractor” responsible for the injuries pursuant to Labor Law § 240 (1). Since NAB is not an owner, and it cannot be ascertained from the record if it was either a general contractor or a statutory agent of the owner or general contractor, the plaintiffs should not have been granted summary judgment on their Labor Law § 240 (1) claim (see Russin v Picciano & Son, 54 NY2d 311; D’Amico v New York Racing Assn., 203 AD2d 509).

Moreover, since NAB failed to establish its entitlement to judgment as a matter of law on the common-law negligence claims, summary judgment dismissing those claims was properly denied (see, e.g. Xirakis v 1115 Fifth Ave. Corp., 226 AD2d 452; Lynch v City of New York, 209 AD2d 590). S. Miller, J. P., Friedmann, Adams and Cozier, JJ., concur.

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Bluebook (online)

289 A.D.2d 442, 734 N.Y.S.2d 631, 2001 N.Y. App. Div. LEXIS 12972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fumo-v-nab-construction-corp-nyappdiv-2001.

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