Headen v. Progressive Painting Corp.

• Decision Date: 10 April 1990
• Citation: 553 N.Y.S.2d 401,160 A.D.2d 319
• Parties: Benny L. HEADEN, Plaintiff-Respondent, v. PROGRESSIVE PAINTING CORP., Defendant-Appellant, and Yonkers Contracting Company, Inc., et al., Defendants-Respondents,
• Court: New York Supreme Court — Appellate Division

Page 401

553 N.Y.S.2d 401

160 A.D.2d 319

Benny L. HEADEN, Plaintiff-Respondent, v. PROGRESSIVE PAINTING CORP., Defendant-Appellant and Yonkers Contracting Company, Inc., et al., Defendants-Respondents [and a third-party action.]

Supreme Court, Appellate Division First Department.

April 10, 1990.

F.M. Cerniglia, for plaintiff-respondent.

R.H. Bakalor, New York City, for defendant-appellant.

Before CARRO, J.P., and KASSAL, ELLERIN, WALLACH and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Hansel McGee, J.) entered May 17, 1989, which, inter alia, granted plaintiff summary judgment on the issue of liability, unanimously reversed to the extent appealed from, on the law, and summary judgment denied to plaintiff as against defendant Progressive Painting Corp., without costs.

Plaintiff, an iron worker, commenced this action to recover for personal injuries suffered while on the job in an accident at a construction site. The site was owned by the defendant City of New York and the general contractor was defendant Yonkers Contracting Co., Inc. Defendant Progressive Painting Corp. was a subcontractor engaged to perform painting and sandblasting work. Plaintiff was employed by third-party defendant Rice Mohawk U.S. Construction Company Ltd., a subcontractor engaged to perform iron work.

Plaintiff was at work burning steel on an elevated structure at the site, when he noticed that a fire had started in one of the bay areas of the structure. Plaintiff walked to that area and began to put out the fire. Plaintiff slipped on the canvas over certain plywood safety boards which covered the openings in the elevated structure, and plaintiff alleges that certain of the safety boards were missing, thereby creating an opening in the structure, through which plaintiff fell 20 to 30 feet to the ground below, sustaining severe injuries.

Plaintiff moved for summary judgment against all of the named defendants, on the ground that defendants failed to provide proper scaffolding protection during the course of his employment, in violation of Labor Law § 240(1). The IAS Court found that there was no question of fact that plaintiff's injury occurred within the purview of this statute and granted plaintiff summary judgment against all defendants.

On this appeal, Progressive Painting Corp. asserts that since it was merely a subcontractor it cannot be held liable to the plaintiff under this statute and that the IAS Court erred in including it among all the...