Gikas v. 42-51 Hunter St., LLC

• Decision Date: 23 December 2015
• Docket Number: 755155/10.,Index Nos. 28319/08,75077/09,75017/10,2014-06753
• Citation: 134 A.D.3d 987,2015 N.Y. Slip Op. 09403,24 N.Y.S.3d 87
• Court: New York Supreme Court — Appellate Division
• Parties: Aristides GIKAS, plaintiff-respondent, v. 42–51 HUNTER STREET, LLC, et al., defendants/second and third third-party plaintiffs-appellants, Colgate Scaffolding & Equipment Corp., defendant/third-party plaintiff-respondent; Consolidated Installations Incorporated, third-party defendant/second third-party defendant; Danica Group, LLC, third third-party defendant-respondent.

134 A.D.3d 987

24 N.Y.S.3d 87

2015 N.Y. Slip Op. 09403

Aristides GIKAS, plaintiff-respondent,

v. 42–51 HUNTER STREET, LLC, et al., defendants/second and third third-party plaintiffs-appellants,Colgate Scaffolding & Equipment Corp., defendant/third-party plaintiff-respondent;Consolidated Installations Incorporated, third-party defendant/second third-party defendant;Danica Group, LLC, third third-party defendant-respondent.

2014-06753

Index Nos. 28319/08

75077/09

75017/10

755155/10.

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

Dec. 23, 2015.

Carroll McNulty & Kull, LLC, New York, N.Y. (Michael R. Schneider and Laura B. Dowgin of counsel), for defendants/second and third third-party plaintiffs-appellants.

William Schwitzer & Associates, P.C., New York, N.Y. (Dana E. Heitz of counsel), for plaintiff-respondent.

O'Connor Redd LLP, Port Chester, N.Y. (Amy L. Fenno and Nicole Scarangella of counsel), for defendant/third-party plaintiff-respondent.

Goldberg Segalla LLP, Garden City, N.Y. (Brendan T. Fitzpatrick and James Gilroy of counsel), for third third-party defendant-respondent.

In an action to recover damages for personal injuries, the defendants/second and third third-party plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), dated April 30, 2014, as granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against them, granted that branch of the motion of the defendant/third party plaintiff which was for summary judgment on its cross claim for contractual indemnification against the defendant/second and third third-party plaintiff Roe Development Group, LLC, and granted that branch of the motion of the third third-party defendant which was for summary judgment dismissing the third third-party complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant/third-party plaintiff which was for summary judgment on its cross claim for contractual indemnification against the defendant/second and third third-party plaintiff Roe Development Group, LLC, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff and the third third-party defendant payable by the appellants and one bill of costs to the appellants payable by the defendant/third-party plaintiff.

The plaintiff, an electrician's helper at a construction site, was walking on the ground level toward a sidewalk bridge that was being dismantled when an unsecured six- to eight-foot-long steel I–beam fell and struck him. At the time of the accident, the I–beam was being handed down by workers standing atop the bridge to workers standing in a truck.

The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the appellants. The plaintiff's evidence demonstrated, prima facie, that an object, while being lowered from atop a sidewalk bridge, fell because of the absence of a safety device of the kind enumerated in the statute and struck the plaintiff at ground level (see Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085; Mendoza v. Bayridge Parkway Assoc., LLC, 38 A.D.3d 505, 506–507, 831 N.Y.S.2d 485; Cruci v. General Elec. Co., 33 A.D.3d 838, 839, 824 N.Y.S.2d 105; Salinas v. Barney Skanska Constr. Co., 2 A.D.3d 619, 622, 769 N.Y.S.2d 559). In opposition, the appellants failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Figueroa v. Manhattanville Coll., 193 A.D.2d 778, 779, 598 N.Y.S.2d 77). Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the appellants.

The Supreme Court properly granted that branch of the motion of the third third-party defendant, Danica Group, LLC (hereinafter Danica), which was for summary judgment dismissing the third third-party complaint, which alleged causes of action for contractual indemnification and to recover damages for breach of a contract to...