Nickerson v. City of New York

309 A.D.2d 588, 765 N.Y.S.2d 510, 2003 N.Y. App. Div. LEXIS 10575

Opinion

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered April 11, 2003, which, insofar as appealed from as limited by the briefs, denied third-party defendant’s motion for summary judgment dismissing the third-party complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of third-party defendant dismissing the third-party complaint.

Third-party defendant is not bound by the trial court’s prior determination granting plaintiff summary judgment as to liability on his Labor Law § 240 (1) claim, since that determination was rendered before third-party defendant was joined in the action (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 486 [1979]). Thus, notwithstanding the prior grant of summary judgment in favor of plaintiff against defendant and third-party plaintiff, third-party defendant is entitled to summary judgment dismissing the third-party complaint because the record establishes that the complaint is without merit as a matter of law (see CPLR 1008; Prigent v Friedman, 264 AD2d 568, 569 [1999]). Specifically, the Labor Law § 240 (1) cause of action is without merit because, at the time of his accident, plaintiff was performing routine maintenance work outside the ambit of the statute (see Jehle v Adams Hotel Assoc., 264 AD2d 354 [1999]); the Labor Law § 200 and common-law negligence causes of action are without merit because the record establishes that defendant and third-party plaintiff exercised no authority or control over the work in question (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]); and the Labor Law § 241 (6) cause of action is without merit because there is no evidence that plaintiffs injury resulted from a violation of a sufficiently specific provision of the Industrial Code or other safety regulation (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 878 [1993]; Brown v New York City Economic Dev. Corp., 234 AD2d 33, 34 [1996]). Concur — Tom, J.P., Sullivan, Rosenberger, Lerner and Friedman, JJ.