Lynch v. City of New York

• Decision Date: 21 November 1994
• Citation: 619 N.Y.S.2d 657,209 A.D.2d 590
• Parties: Michael LYNCH, Appellant-Respondent, v. CITY OF NEW YORK, Defendant, Long Island Railroad, et al., Defendants Third-Party Plaintiffs-Respondents-Appellants, Villepigue Outdoor Advertising Corp., Defendant-Respondent, Service Sign Erectors, Third-Party Defendant-Respondent (and a second third-party action).
• Court: New York Supreme Court — Appellate Division

Page 657

619 N.Y.S.2d 657

209 A.D.2d 590

Michael LYNCH, Appellant-Respondent, v. CITY OF NEW YORK, Defendant Long Island Railroad, et al., Defendants Third-Party Plaintiffs-Respondents-Appellants Villepigue Outdoor Advertising Corp., Defendant-Respondent Service Sign Erectors, Third-Party Defendant-Respondent (and a second third-party action).

Supreme Court of New York, Appellate Division,

Second Department.

Nov. 21, 1994.

Russo, Fusco & Scamardella, P.C., Staten Island (Kathleen Furey-Tran, of counsel), for appellant-respondent.

Langan & Levy, New York City (Diane Flood Goldstick, of counsel), for defendants third-party plaintiffs-respondents-appellants.

Francis W. Turner, New York City (Edward L. Owen III, of counsel), for defendant-respondent.

Quirk & Bakalor, P.C., New York City (Daniel D. Flynn, of counsel), for third-party defendant-respondent.

In an action to recover damages for personal injuries, (1) the plaintiff appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Richmond County (Amann, J.), dated January 28, 1993, as denied his motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240, and (2) the defendants Long Island Railroad and Ammni-America, Inc. cross-appeal, as limited by their brief, from so much of the same order as denied their cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

Contrary to the plaintiff's contention, the Supreme Court properly determined that there are questions of fact which preclude an award of partial summary judgment in his favor on the issue of liability pursuant to Labor Law § 240(1). Indeed, a factual issue exists with regard to whether the plaintiff refused to make use of an available safety device provided by his employer, a circumstance which might bar recovery under the statute (see generally, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912; Cannata v. One Estate, 127 A.D.2d 811, 512 N.Y.S.2d 211). Likewise, there is a question of fact with respect to which of the various defendants would qualify as owners of the premises under Labor Law § 240(1). We note that the term "owner" has been held to include, inter alia, those entities with interests in the property which have the right, as a practical matter, to hire and fire the subcontractors and to insist that proper safety practices are followed (see generally, Wendel v. Pillsbury Corp., 205 A.D.2d 527, 612 N.Y.S.2d 678; Mangiameli v. Galante, 171 A.D.2d 162, 574 N.Y.S.2d 842; DeFreece v. Penny Bag, 137 A.D.2d 744, 524 N.Y.S.2d 825). In this regard, it is possible that both the entity which owns the billboard on which the plaintiff was working and the entity which owns the property upon which the billboard was...