Vurchio v. Kalikow Lincoln Development Co.

187 A.D.2d 280, 589 N.Y.S.2d 440, 1992 N.Y. App. Div. LEXIS 12617

Opinion

Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered on or about March 17, 1992, which, inter alia, granted defendants and third-party plaintiffs’ cross-motion for summary judgment on their contractual indemnification claim against third-party defendant Circle Industries, Inc., a division of Nastasi & White, Inc., unanimously affirmed, with costs.

Partial summary judgment as to liability was properly granted to plaintiff on his Labor Law § 240 (1) claim against the defendants and third-party plaintiffs, who are the owner and general contractor of a construction site where he sustained injuries.

Plaintiff was employed as a carpenter by subcontractor third-party defendant Circle and was doing work at an elevation level of two and one half feet on top of a sawhorse constructed and maintained by Circle personnel, when it collapsed, causing him to fall to the ground and sustain injuries. Under these circumstances, the IAS Court correctly determined that plaintiff was engaged in an activity covered by Labor Law § 240 (1) and that the defendants and third-party plaintiffs are absolutely liable (see, Rocovich v Consolidated Edison Co., 78 NY2d 509, 514; Bilderback v Agway Petroleum Corp., 185 AD2d 372).

Furthermore, the IAS Court properly determined defendants and third-party plaintiffs’ entitlement, as a matter of law, to contractual indemnification against Circle Industries, as there was no factual issue concerning the existence of any negligence on their part (see, Brown v Two Exch. Plaza Partners, 76 NY2d 172). Concur—Sullivan, J. P., Wallach, Kupferman and Kassal, JJ.