McMahon v. Wolverine Worldwide Inc.

• Decision Date: 07 November 1996
• Citation: 649 N.Y.S.2d 110,233 A.D.2d 587
• Parties: Timothy P. McMAHON et al., Appellants, v. WOLVERINE WORLDWIDE INC. et al., Defendants and Third-Party Plaintiffs-Respondents; Ross R. Biondo Construction Inc., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 110

649 N.Y.S.2d 110

233 A.D.2d 587

Timothy P. McMAHON et al., Appellants, v. WOLVERINE WORLDWIDE INC. et al., Defendants and Third-Party Plaintiffs-Respondents; Ross R. Biondo Construction Inc., Third-Party Defendant-Appellant.

Supreme Court, Appellate Division,

Third Department.

Nov. 7, 1996.

John A. Piasecki (Jonathan J. Miller, of counsel), Malone, for appellants.

Conboy, McKay, Bachman & Kendall L.L.P. (Stephen W. Gebo, of counsel), Watertown, for third-party defendant-appellant.

Muller & Muller (Michael S. Borgos, of counsel), Glens Falls, for defendants and third-party plaintiffs-respondents.

Before MIKOLL, J.P., and WHITE, YESAWICH, PETERS and CARPINELLO, JJ.

WHITE, Justice.

Appeal from an order of the Supreme Court (Ryan Jr., J.), entered January 23, 1996 in Franklin County, which, inter alia, denied plaintiffs' motion for partial summary judgment and granted a cross motion by defendants for summary judgment against third-party defendant on the issue of indemnification.

Plaintiffs, in this personal injury action arising out of a construction site accident, moved for summary judgment on their cause of action predicated upon Labor Law § 240(1). Defendants responded by cross-moving for the same relief dismissing plaintiffs' Labor Law § 240(1) and § 241(6) causes of action or, alternatively, summary judgment against third-party defendant on their cause of action for common-law and contractual indemnification. Because the movants did not support their motions with copies of their pleadings, they were not entitled to summary judgment (see, Dupuy v. Carrier Corp., 204 A.D.2d 977, 614 N.Y.S.2d 950; Mathiesen v. Mead, 168 A.D.2d 736, 737, 563 N.Y.S.2d 887; Lawlor v. County of Nassau, 166 A.D.2d 692, 561 N.Y.S.2d 644; Somers Realty Corp. v. Big "V" Props., 149 A.D.2d 581, 540 N.Y.S.2d 677; see also, CPLR 3212[b] ).

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted defendants' cross motion; cross motion denied; and, as so modified, affirmed.

MIKOLL, J.P., and YESAWICH, PETERS and CARPINELLO, JJ., concur.