Biscup v. E.W. Howell, Co.

• Decision Date: 16 September 2015
• Citation: 16 N.Y.S.3d 266,131 A.D.3d 996,2015 N.Y. Slip Op. 06772
• Parties: Scott BISCUP, respondent, v. E.W. HOWELL, CO., INC., defendant third-party plaintiff-appellant; SBS Steel, Inc., third-party defendant-appellant; Super Steel Structures, LLC, third-party defendant-appellant-respondent.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 996

16 N.Y.S.3d 266

2015 N.Y. Slip Op. 06772

Scott BISCUP, respondent,

v. E.W. HOWELL, CO., INC., defendant third-party plaintiff-appellant;SBS Steel, Inc., third-party defendant-appellant;Super Steel Structures, LLC, third-party defendant-appellant-respondent.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 16, 2015.

Motion by the defendant third-party plaintiff-appellant for leave to reargue an appeal from an order of the Supreme Court, Nassau County (Brandveen, J.), entered April 1, 2013, which was determined by decision and order of this Court dated August 6, 2014.

Upon the papers filed in support of the motion and the papers filed in partial opposition thereto, it is

ORDERED that the motion is granted, and upon reargument, the decision and order of this Court dated August 6, 2014 ( Biscup v. E.W. Howell, Co., Inc., 120 A.D.3d 459, 991 N.Y.S.2d 108) in the above-entitled action is recalled and vacated, and the following decision and order is substituted therefor:

Fabiani Cohen & Hall, LLP, New York, N.Y. (Kevin B. Pollack of counsel), for defendant third-party plaintiff-appellant.

Lichtfield Cavo LLP, New York, N.Y. (Russell J. McBrearty of counsel), for third-party defendant-appellant and third-party defendant-appellant-respondent.

Kazmierczuk & McGrath, Forest Hills, N.Y. (John P. McGrath of counsel), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, HECTOR D. LaSALLE, and BETSY BARROS, JJ.

In an action to recover damages for personal injuries, the third-party defendants appeal from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered April 1, 2013, as denied those branches of their motion which were for summary judgment dismissing the plaintiff's causes of action alleging violations of Labor Law §§ 240(1)and 241(6), and the defendant third-party plaintiff cross-appeals, as limited by its brief, from so much of the same order as denied that branch of its separate motion which was for summary judgment dismissing the complaint, in effect, denied that branch of its motion which was for summary judgment on the issue of liability on its third-party cause of action for contractual indemnification against the third-party defendant Super Steel Structures, LLC, and, in effect, granted that branch of the motion of the third-party defendant Super Steel Structures, LLC, which was for summary judgment dismissing the third-party cause of action for contractual indemnification insofar as asserted against it. Justice LaSalle has been substituted for former Justice Lott ( see22 NYCRR 670.1[c] ).

ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof denying those branches of the motions of the defendant third-party plaintiff and the third-party defendants which were for summary judgment dismissing the plaintiff's causes of action alleging violations of Labor Law §§ 240(1) and 241(6), and substituting therefor provisions granting those branches of the motions, and (2) by deleting the provision thereof, in effect, granting that branch of the motion of the third-party defendants which was for summary judgment dismissing the third-party cause of action for contractual indemnification insofar as asserted against Super Steel Structures, LLC, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The defendant third-party plaintiff, E.W. Howell Co., Inc. (hereinafter Howell), and the third-party defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 241(6) by showing that the ...