Lagares v. Carrier Terminal Servs., Inc.

• Decision Date: 22 April 2022
• Docket Number: 1051,CA 21-00719
• Citation: 204 A.D.3d 1456,167 N.Y.S.3d 275
• Parties: Jose M. LAGARES and Carmen J. Ramos, Plaintiffs, v. CARRIER TERMINAL SERVICES, INC., and Speed Motor Express of Western New York, Inc., Doing Business as Speed Global Services, Defendants. Carrier Terminal Services, Inc., Third-Party Plaintiff-Respondent, v. Sahlem's Roofing and Siding, Inc., Third-Party Defendant-Appellant. Speed Motor Express of Western New York, Inc., Doing Business as Speed Global Services, Third-Party Plaintiff-Respondent, v. Sahlem's Roofing and Siding, Inc., Third-Party Defendant-Appellant. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 1456
167 N.Y.S.3d 275

Jose M. LAGARES and Carmen J. Ramos, Plaintiffs,
v.
CARRIER TERMINAL SERVICES, INC., and Speed Motor Express of Western New York, Inc., Doing Business as Speed Global Services, Defendants.

Carrier Terminal Services, Inc., Third-Party Plaintiff-Respondent,
v.
Sahlem's Roofing and Siding, Inc., Third-Party Defendant-Appellant.

Speed Motor Express of Western New York, Inc., Doing Business as Speed Global Services, Third-Party Plaintiff-Respondent,
v.
Sahlem's Roofing and Siding, Inc., Third-Party Defendant-Appellant. (Appeal No. 2.)

1051
CA 21-00719

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

Entered: April 22, 2022

BAXTER SMITH & SHAPIRO, P.C., HICKSVILLE (ROBERT C. BAXTER OF COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT.

SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR THIRD-PARTY PLAINTIFF-RESPONDENT CARRIER TERMINAL SERVICES, INC.

CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (THOMAS P. KAWALEC OF COUNSEL), FOR THIRD-PARTY PLAINTIFF-RESPONDENT SPEED MOTOR EXPRESS OF WESTERN NEW YORK, INC., DOING BUSINESS AS SPEED GLOBAL SERVICES.

PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.

167 N.Y.S.3d 278

MEMORANDUM AND ORDER

It

204 A.D.3d 1457

is hereby ORDERED that the order so appealed from is modified on the law by amending the order and judgment entered October 29, 2020 by adding to the first decretal paragraph immediately after the words "any judgment the plaintiffs ultimately obtain against Carrier" the following: "that is satisfied by Carrier" and adding to the third decretal paragraph immediately after the words "any judgment the plaintiffs ultimately obtain against Speed" the following: "that is satisfied by Speed" and as modified the order is affirmed without costs.

Memorandum: Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries allegedly sustained by Jose M. Lagares (plaintiff) when, while he was replacing the roof of a building owned by defendant-third-party plaintiff Carrier Terminal Services, Inc. (Carrier), the piece of metal decking on which he was standing slipped off of its steel support beam, causing him to fall to the floor below. Defendant-third-party plaintiff Speed Motor Express of Western New York, Inc., doing business as Speed Global Services (Speed Motor), was allegedly acting as an agent of Carrier with respect to the roof replacement. Plaintiff was an employee of third-party defendant Sahlem's Roofing and Siding, Inc. (Sahlem). After this Court affirmed an order that, inter alia, granted plaintiffs’ motion for partial summary judgment on the issue of Carrier's liability under Labor Law § 240 (1) ( Lagares v. Carrier Term. Servs., Inc. , 177 A.D.3d 1394, 113 N.Y.S.3d 790 [4th Dept. 2019] ), Carrier moved for summary judgment on its claim for common-law indemnification against Sahlem and dismissing Sahlem's counterclaim and cross claim against it. Speed Motor moved for summary judgment on its claim for common-law indemnification against Sahlem and dismissing plaintiffs’ second amended complaint and all cross claims and counterclaims against it, and plaintiffs cross-moved for partial summary judgment on the issue of Speed Motor's liability under Labor Law § 240 (1).

In appeal No. 1, Sahlem appeals from an order and judgment entered October 29, 2020 that granted plaintiffs’ cross motion and Carrier's motion, and granted those parts of Speed Motor's motion seeking summary judgment on the issue of common-law indemnification against Sahlem and dismissing

204 A.D.3d 1458

Sahlem's counterclaim and cross claim against it. In appeal No. 2, Sahlem appeals from an order entered December 24, 2020 in which Supreme Court granted Sahlem's motion for leave to reargue the order and judgment in appeal No. 1 and, upon reargument, adhered to its prior determination.

At the outset, we note that appeal No. 1 must be dismissed inasmuch as the order and judgment appealed from was superseded by the order in appeal No. 2 (see Loafin’ Tree Rest., Inc. v. Pardi [appeal No. 1], 162 A.D.2d 985, 985, 559 N.Y.S.2d 154 [4th Dept. 1990] ).

Contrary to the contentions of Carrier and Speed Motor, Sahlem did not abandon its appeal from the order in appeal No. 2. Sahlem timely filed a notice of appeal from that order and timely perfected the appeal by filing an appellate brief under the appropriate docket number and, because the order in appeal No. 2 superseded the order and judgment in appeal No. 1, Sahlem's challenges to the court's determinations with respect to the summary judgment motions of Carrier and Speed Motor are properly raised under appeal No. 2 (see generally id. ). Indeed, although Sahlem's appellate brief does not explicitly challenge the order in appeal No. 2, Sahlem is not aggrieved by the part of the order that granted Sahlem leave to

167 N.Y.S.3d 279...