Purcell v. Visiting Nurses Found. Inc.

• Decision Date: 21 April 2015
• Docket Number: 14869, 113123/09, 590593/10
• Citation: 2015 N.Y. Slip Op. 03281,8 N.Y.S.3d 279,127 A.D.3d 572
• Parties: Joseph PURCELL, et al., Plaintiffs–Appellants, v. VISITING NURSES FOUNDATION INC., et al., Defendants–Respondents. Visiting Nurses Foundation Inc., et al., Third–Party Plaintiffs–Respondents, v. Northeastern Fabricators, Inc., Third–Party Defendant–Appellant. Beyer Blinder Belle, Planners LLP, et al., Third–Party Defendants.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 572
8 N.Y.S.3d 279
2015 N.Y. Slip Op. 03281

Joseph PURCELL, et al., Plaintiffs–Appellants
v.
VISITING NURSES FOUNDATION INC., et al., Defendants–Respondents.

Visiting Nurses Foundation Inc., et al., Third–Party Plaintiffs–Respondents
v.
Northeastern Fabricators, Inc., Third–Party Defendant–Appellant.

Beyer Blinder Belle, Planners LLP, et al., Third–Party Defendants.

14869, 113123/09, 590593/10

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

April 21, 2015.

8 N.Y.S.3d 280

Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for Purcell appellants.

Fabiani Cohen & Hall, LLP, New York (John V. Fabiani Jr. of counsel), for respondents.

Nicoletti Gonson Spinner LLP, New York (Jason I. Gomes of counsel), for North Eastern Fabricators Inc., appellant.

TOM, J.P., FRIEDMAN, RENWICK, MOSKOWITZ, DeGRASSE, JJ.

Opinion

127 A.D.3d 572

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered September 10, 2013, which, insofar as appealed from as limited by the briefs, denied plaintiffs' cross motion for partial summary judgment on the Labor Law § 240(1) claim

127 A.D.3d 573

as against defendant Cauldwell–Wingate, Inc. (Cauldwell), granted Cauldwell's cross motion for summary judgment dismissing the Labor Law § 240(1) claim as against it insofar as based on a “falling object” theory, and denied the cross motion of third-party defendant Northeastern Fabricators, Inc. (NEF) for summary judgment dismissing defendant common-law indemnification and contribution claims against it, unanimously reversed, on the law, without costs, defendant Cauldwell's cross motion for summary judgment dismissing the Labor Law § 240(1) claim as against it denied, plaintiffs' cross motion for partial summary judgment on the Labor Law § 240(1) claim as against Cauldwell granted, and NEF's cross motion for summary judgment dismissing defendants' common-law indemnification and contribution claims against it granted.

8 N.Y.S.3d 281

The undisputed testimony of the two eyewitnesses established that while plaintiff was working on a gut renovation of a building, he performed his assigned task of standing on the third step of a ladder in the basement and gently pulling one end of an approximately 8– or 10–foot–long piece of steel called a C–channel (channel), which was positioned about 11 feet above the floor and had been mostly cut loose from the first floor framing, about one or two inches away from the eastern wall. At that moment, an unsecured terracotta wall adjacent to the structural wall on the first floor, which had been resting on the C–channel and a concrete slab...