Aragon v. 233 West 21st Street, Inc.
| Decision Date | 15 February 1994 |
| Citation | 607 N.Y.S.2d 642,201 A.D.2d 353 |
| Parties | Juana Luisa ARAGON, etc., Plaintiff-Respondent, v. 233 WEST 21ST STREET, INC., Defendant-Appellant-Respondent, Cole Restoration Corp., Defendant-Respondent-Appellant, York Scaffold Equipment Corp., et al., Defendants-Respondents. 233 WEST 21ST STREET, INC., Third-Party Plaintiff-Appellant-Respondent, v. D.N.A. CONSTRUCTION CORP., Third-Party Defendant-Respondent. COLE RESTORATION CORP., Second Third-Party Plaintiff-Respondent-Appellant, v. D.N.A. CONSTRUCTION CORP., Second Third-Party Defendant-Respondent. D.N.A. CONSTRUCTION CORP., Fourth-Party Plaintiff-Respondent, v. ST. VINCENT'S HOSPITAL AND MEDICAL CENTER OF NEW YORK, et al., Fourth-Party Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Before ELLERIN, J.P., and WALLACH, KUPFERMAN and RUBIN, JJ.
Order, Supreme Court, New York County (Walter M. Schackman, J.), entered October 28, 1992, which, inter alia, granted plaintiff's motion for summary judgment on the issue of liability against defendant owner, 233 West 21st Street, Inc., and defendant general contractor, Cole Restoration Corporation, but denied 233 West 21st Street's cross-motion for summary judgment against Cole on the basis of common law and contractual indemnification, against third party defendant D.N.A. Construction Corp. on the basis of common law indemnity and against its co-defendants York Scaffold Equipment Corp., York Ladder, Inc. and York Scaffold & Ladder on the basis of common law negligence and strict liability, unanimously modified, on the law, only to the extent of granting 233 West 21st Street, Inc.'s cross-motion for summary judgment against Cole on the basis of both common law and contractual indemnity and, as so modified, the order is otherwise affirmed, without costs.
In this personal injury and wrongful death action arising from the collapse of a scaffold on which plaintiff's decedent was performing brick restoration work on a residential apartment building, plaintiff was properly granted summary judgment on the issue of liability inasmuch as the collapse of a scaffold is prima facie evidence of a violation of Labor Law § 240(1) which shifts the burden to defendants to raise a factual issue on liability (see, Bras v. Atlas Const. Corp., 166 A.D.2d 401, 560 N.Y.S.2d 467). Despite defendants' arguments, there is simply no evidence from which an inference could be made that the decedent had "refused" to avail...
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