Karas v. Corning Hospital

262 A.D.2d 1039, 692 N.Y.S.2d 626, 1999 N.Y. App. Div. LEXIS 7266

Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Because third-party defendant has failed to brief on appeal the issue whether Supreme Court erred in granting the cross motion of defendants-third-party plaintiffs for common-law indemnification against it, we deem that issue abandoned (see, Ciesinski v Town of Aurora, 202 AD2d 984).

The court erred in granting plaintiffs’ motion for partial summary judgment on the issue of liability on the Labor Law § 240 (1) claim. There are issues of fact whether the scaffold was defective (see, Felker v Corning Inc., 90 NY2d 219, 224; Ghiandoni v City of Niagara Falls, 258 AD2d 923) and whether the conduct of plaintiff Timothy R. Karas was the sole proximate cause of the accident (see, Weininger v Hagedorn & Co., 91 NY2d 958, 960, rearg denied 92 NY2d 875; Mortellaro v State Farm Mut. Auto. Ins. Co., 259 AD2d 968). Thus, we modify the order by denying plaintiffs’ motion. (Appeal from Order of Supreme Court, Steuben County, Scudder, J., for Purple, Jr., J., pursuant to CPLR 9002 — Summary Judgment.) Present— Denman, P. J., Pine, Wisner, Hurlbutt and Callahan, JJ.