Spence v. Island Estates at Mt. Sinai II, LLC

• Decision Date: 17 December 2010
• Citation: 914 N.Y.S.2d 203,79 A.D.3d 936
• Parties: Michael J. SPENCE, respondent, v. ISLAND ESTATES AT MT. SINAI II, LLC, et al., defendants third-party plaintiffs-respondents-appellants; Lakeville Industries, Inc., third-party defendant-appellant-respondent.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 203
79 A.D.3d 936

Michael J. SPENCE, respondent,
v.
ISLAND ESTATES AT MT. SINAI II, LLC, et al., defendants third-party plaintiffs-respondents-appellants;
Lakeville Industries, Inc., third-party defendant-appellant-respondent.

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

Dec. 17, 2010.

914 N.Y.S.2d 204

John T. Ryan, Riverhead, N.Y. (Robert F. Horvat of counsel), for third-party defendant-appellant-respondent.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Marcia K. Raicus of counsel), for defendants third-party plaintiffs-respondents-appellants.

Siben and Siben LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for respondent.

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

79 A.D.3d 936

In an action to recover damages for personal injuries, the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court,

914 N.Y.S.2d 205

Suffolk County,

79 A.D.3d 937

(Costello, J.), entered October 9, 2009, as denied its cross motion for summary judgment dismissing the third-party complaint, and the defendants third-party plaintiffs cross-appeal, as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing the complaint and on their third-party cause of action for contractual indemnification.

ORDERED that the order is reversed, on the law, with one bill of costs to the defendants third-party plaintiffs, payable by the plaintiff, and one bill of costs to the third-party defendant, payable by the defendants third-party plaintiffs, that branch of the motion of the defendants third-party plaintiffs which was for summary judgment dismissing the complaint is granted, that branch of the motion of the defendants third-party plaintiffs which was for summary judgment on the third-party cause of action for contractual indemnification is denied as academic, and the third-party defendant's motion for summary judgment dismissing the third-party complaint is granted.

On March 31, 2005, the plaintiff, an employee of the third-party defendant, allegedly sustained injuries while delivering a counter top to a home that was under construction as part of a residential project that was being developed by the defendants third-party-plaintiffs (hereinafter the defendants). The plaintiff alleged that he hit his right foot on a rut or deep crevice in the ground, characterized by tire or tread marks.

The Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages under Labor Law § 240(1), since the accident occurred at ground level, and the plaintiff was not subjected to an elevation-related risk ( see Nieves v. Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, 916, 690...