Winiavski v. Martin Paint Stores

Appellate Division of the Supreme Court of New York

Winiavski v. Martin Paint Stores

240 A.D.2d 565, 658 N.Y.S.2d 663, 1997 N.Y. App. Div. LEXIS 6893

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

DecidedJune 16, 1997

StatusPublished

Cited by3 cases

This text of 240 A.D.2d 565 (Winiavski v. Martin Paint Stores) 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

Winiavski v. Martin Paint Stores, 240 A.D.2d 565, 658 N.Y.S.2d 663, 1997 N.Y. App. Div. LEXIS 6893 (N.Y. Ct. App. 1997).

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Opinion

In an action to recover damages for personal injuries, etc., the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (O’Donoghue, J.), dated April 16, 1996, as granted the third-party plaintiff’s cross motion for summary judgment on the first cause of action in the third-party complaint for common-law indemnification.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff Sigmund Winiavski was injured when he was doing roofing work at the respondent’s warehouse. The injured plaintiff and his wife brought this action against the respondent, and the respondent brought a third-party action against the appellant, the injured plaintiff’s employer.

The respondent, as an owner of the worksite at which the accident occurred, is liable under Labor Law § 240 (1), and is not barred from obtaining indemnification under the common law (see, Kelly v Diesel Constr. Div. of Carl A. Morse, 35 NY2d 1, 6). Although a party who is actually a participant in the wrongdoing may not receive the benefit of indemnification, the record fails to present an issue of fact as to whether the respondent engaged in any such wrongdoing (see, Pazmino v Woodside Dev. Co., 212 AD2d 520). Joy, J. P., Goldstein, Florio and McGinity, JJ., concur.

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In an action to recover damages for personal injuries, etc., the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (O’Donoghue, J.), dated April 16, 1996, as granted the third-party plaintiff’s cross motion for summary judgment on the first cause of action in the third-party complaint for common-law indemnification.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff Sigmund Winiavski was injured when he was doing roofing work at the respondent’s warehouse. The injured plaintiff and his wife brought this action against the respondent, and the respondent brought a third-party action against the appellant, the injured plaintiff’s employer.

The respondent, as an owner of the worksite at which the accident occurred, is liable under Labor Law § 240 (1), and is not barred from obtaining indemnification under the common law (see, Kelly v Diesel Constr. Div. of Carl A. Morse, 35 NY2d 1, 6). Although a party who is actually a participant in the wrongdoing may not receive the benefit of indemnification, the record fails to present an issue of fact as to whether the respondent engaged in any such wrongdoing (see, Pazmino v Woodside Dev. Co., 212 AD2d 520). Joy, J. P., Goldstein, Florio and McGinity, JJ., concur.

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Bluebook (online)

240 A.D.2d 565, 658 N.Y.S.2d 663, 1997 N.Y. App. Div. LEXIS 6893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winiavski-v-martin-paint-stores-nyappdiv-1997.

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