Mooney v. PCM Development Co.

• Decision Date: 21 April 1997
• Citation: 656 N.Y.S.2d 655,238 A.D.2d 487
• Court: New York Supreme Court — Appellate Division
• Parties: Kevin MOONEY, et al., Respondents, v. PCM DEVELOPMENT COMPANY, et al., Defendants Third-Party Plaintiffs-Appellants, et al., Defendant; S & H Interiors, Third-Party Defendant-Appellant.

Page 655

656 N.Y.S.2d 655

238 A.D.2d 487

Kevin MOONEY, et al., Respondents, v. PCM DEVELOPMENT COMPANY, et al., Defendants Third-Party

Plaintiffs-Appellants, et al., Defendant;

S & H Interiors, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division,

Second Department.

April 21, 1997.

John J. Wrenn, Brooklyn, for third-party defendant-appellant.

Cerussi & Spring, White Plains, (Richard D. Bentzen, of counsel), for defendants third-party plaintiffs-appellants.

Yella & Payne, New York City, (Patrick J. Yella, of counsel), for respondents.

Before MILLER, J.P., and SULLIVAN, FLORIO and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., (1) the third-party defendant S & H Interiors appeals from an order of the Supreme Court, Kings County (Barasch, J.), dated January 29, 1996, which granted the plaintiffs' motion for partial summary judgment on the issue of liability under Labor Law § 240(1), denied its cross motion to dismiss the Labor Law § 240(1) cause of action, and granted the branch of the cross motion of the defendants third-party plaintiffs PCM Development Company and Pyramid Companies which was, in effect, for summary judgment on its third-party causes of action for common-law and contractual indemnification against it, and (2) the defendants third-party plaintiffs PCM Development Company and Pyramid Companies separately appeal, as limited by their brief, from so much of the same order as granted the plaintiffs' motion for partial summary judgment and denied their cross motion to dismiss the Labor Law § 240(1) cause of action.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

The plaintiff Kevin Mooney, an employee of the third-party defendant S & H Interiors (hereinafter S & H), which was performing certain construction work pursuant to a contract with the defendant third-party plaintiff PCM Development Company (hereinafter PCM/Pyramid), was injured when scaffolding on which he was working was struck by a mechanical lift, causing him to fall.

The plaintiffs were entitled to partial summary judgment on the issue of liability under Labor Law § 240(1) (see, LaFleur v. Consolidated Edison Co. of N.Y., 221 A.D.2d 250, 633 N.Y.S.2d 496; Orcutt v. American Linen Supply Co., 212 A.D.2d 979, 623 N.Y.S.2d 457; Iannelli v. Olympia & York Battery Park Co., 190 A.D.2d 775, 593 N.Y.S.2d 553). Contrary to the appellants' contentions, the plaintiffs established a prima facie case (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562, 606 N.Y.S.2d 127, 626 N.E.2d 912). The risk that the scaffold might be struck by another piece of equipment operated in the same area was neither so extraordinary nor so attenuated as to constitute a superseding cause sufficient to relieve PCM/Pyramid of liability (see, ...