Muniz v. Church of Our Lady of Mt. Carmel

• Decision Date: 01 April 1997
• Parties: Wilfredo MUNIZ, et al., Plaintiffs-Respondents, v. CHURCH OF OUR LADY OF MT. CARMEL, Defendant-Respondent/Third-Party Plaintiff-Respondent, v. NYAHAY REPLACEMENT WINDOWS, Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 38

655 N.Y.S.2d 38

238 A.D.2d 101

Wilfredo MUNIZ, et al., Plaintiffs-Respondents, v. CHURCH OF OUR LADY OF MT. CARMEL, Defendant-Respondent/Third-Party Plaintiff-Respondent, v. NYAHAY REPLACEMENT WINDOWS, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division First Department.

April 1, 1997.

Philip A. De Caro, for Plaintiffs-Respondents.

Charles M. Geiger, for Third-Party Defendant-Appellant.

Before MURPHY, P.J., and SULLIVAN, MILONAS, RUBIN and ANDRIAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Luis Gonzalez, J.), entered September 7, 1995, which, insofar as appealed from, denied third-party defendant's cross motion for summary judgment dismissing plaintiff's complaint, unanimously reversed, on the law, without costs, the cross motion granted, and the complaint dismissed. Upon a search of the record, defendant's cross motion to dismiss the complaint is granted and the indemnification claim against third-party defendant is dismissed. The Clerk is directed to enter judgment dismissing the complaint and third-party complaint.

Plaintiff, an employee of third-party defendant Nyahay Replacement Windows, was injured while removing a window in the kitchen of the defendant Church's rectory. He brought an action against the Church, which in turn brought a third-party action against the window company. Plaintiff alleged common-law negligence and violations of Labor Law §§ 200, 240(1) and 241. The latter two require that property owners take certain safety measures to protect persons engaged to make repairs on their premises, but specifically exempt "owners of one and two-family dwellings who contract for but do not direct or control the work" (Labor Law §§ 240[1] and 241[6] ).

Following discovery, all parties moved for summary judgment. The IAS court granted defendant's motion only to the extent of dismissing the common law negligence and Labor Law § 200 claims, citing the absence of any proof of defendant's negligence; third-party defendant's concession that defendant had not supervised plaintiff's work; and plaintiff's lack of opposition to the cross motion in this respect. The court also granted the Church's motion for indemnity as against the third-party defendant. With respect to the claims under Labor Law §§ 240 and 241, summary judgment was denied to all parties. As to plaintiff and defendant, the court found that factual issues existed as to whether the parish house, or rectory, "falls within the one or two-family dwelling exception" of the statutory provisions, and, as to the third-party defendant, the court found it was not entitled to seek dismissal of plaintiff's complaint because plaintiff had asserted no cause of action directly against it. Only the third-party defendant appeals from the court's order.

Contrary to the IAS court's finding, the third-party defendant was entitled to seek summary judgment as against the plaintiff. Under CPLR 1008, a third-party defendant "may assert against the plaintiff ... any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant shall have the rights of a party adverse to the other parties in the action ...." (see, Jaeger v. Spina, 224 A.D.2d 951, 637 N.Y.S.2d 563). Moreover, we find that the third-party defendant's motion for summary...