Poracki v. St. Mary's Roman Catholic Church

• Decision Date: 29 March 2011
• Parties: Witold J. PORACKI, respondent-appellant,v.ST. MARY'S ROMAN CATHOLIC CHURCH, etc., defendant third-party plaintiff-appellant-respondent,Colgate Scaffolding Corp., defendant,ABC Construction Contracting, defendant third-party defendant-respondent(and a second third-party action).
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1192
920 N.Y.S.2d 233
2011 N.Y. Slip Op. 02646

Witold J. PORACKI, respondent-appellant,
v.
ST. MARY'S ROMAN CATHOLIC CHURCH, etc., defendant third-party plaintiff-appellant-respondent,Colgate Scaffolding Corp., defendant,ABC Construction Contracting, defendant third-party defendant-respondent(and a second third-party action).

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

March 29, 2011.

[920 N.Y.S.2d 235]

Morgan Melhuish Abrutyn, New York, N.Y. (Douglas S. Langholz of counsel), for defendant third-party plaintiff-appellant-respondent.Dinkes & Schwitzer, P.C., New York, N.Y. (Andrea M. Arrigo of counsel), for respondent-appellant.Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y., for defendant third-party defendant-respondent.REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, RANDALL T. ENG and SANDRA L. SGROI, JJ.

[82 A.D.3d 1192] In a consolidated action to recover damages for personal injuries, the defendant third-party plaintiff, St. Mary's Roman Catholic Church, doing business as St. Mary's Star of the Sea, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated December 22, 2009, as granted the plaintiff's motion for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action, granted that branch of the motion of the defendant third-[82 A.D.3d 1193] party defendant, ABC Construction Contracting, which was for summary judgment dismissing the third-party complaint insofar as asserted against it, and denied that branch of its cross motion which was for summary judgment on its third-party cause of action for common-law indemnification against the defendant third-party defendant, ABC Construction Contracting, and the plaintiff cross-appeals from so much of the same order as granted that branch of the motion of the defendant third-party defendant, ABC Construction Contracting, which was for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the motion of the defendant third-party defendant, ABC Construction Contracting, which were for summary judgment dismissing the cause of action alleging common-law negligence and the third-party causes of action alleging common-law indemnification and contribution insofar as asserted against it, and substituting therefor provisions denying those branches of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The defendant third-party plaintiff, St. Mary's Roman Catholic Church, doing business as St. Mary's Star of the Sea (hereinafter St. Mary's), hired Nicholson & Galloway as the general contractor to perform restoration work on the exterior of its church. Nicholson & Galloway then hired the defendant Colgate Scaffolding Corp. (hereinafter Colgate) to erect scaffolding for the project and the defendant third-party defendant, ABC Construction Contracting (hereinafter ABC), to perform lead and asbestos abatement on the exterior walls of the church.

On the day of the accident that is the subject of this action, the plaintiff, an employee of Nicholson & Galloway, was instructed by his foreman to replace wooden planks that had been removed from the scaffolding along the church tower. The

[920 N.Y.S.2d 236]

removed planks created a two-foot-wide opening between the church wall and the level of scaffolding. The plaintiff allegedly fell through the opening in the scaffold to the church roof as he was in the process of replacing the removed planks, causing him to sustain injuries.

The plaintiff commenced this action against St. Mary's and Colgate, alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. St. Mary's commenced a third-party action against ABC seeking, inter alia, common-law indemnification and contribution. The plaintiff then commenced [82 A.D.3d 1194] a separate action against ABC alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. Both of the plaintiff's actions were consolidated by order of the Supreme Court dated June 23, 2006.

Following the conclusion of discovery, the plaintiff moved for summary judgment on the issue of liability on his Labor Law §...