Tapia v. Mario Genovesi & Sons, Inc.

• Decision Date: 13 April 2010
• Court: New York Supreme Court — Appellate Division
• Parties: Carlos TAPIA, appellant, v. MARIO GENOVESI & SONS, INC., respondent-appellant, Reale Masonry Contractors, Inc., respondent, et al., defendants.

899 N.Y.S.2d 303 72 A.D.3d 800 Carlos TAPIA, appellant, v. MARIO GENOVESI & SONS, INC., respondent-appellant, Reale Masonry Contractors, Inc., respondent, et al., defendants. Supreme Court, Appellate Division, Second Department, New York. April 13, 2010.

Paul I. Marx, White Plains, N.Y. (Elliot M. Schuman of counsel), for appellant.

Kornfeld, Rew, Newman & Simeone, Suffern, N.Y. (William S. Badura of counsel), for respondent-appellant.

Baxter Smith & Shapiro, P.C., White Plains, N.Y. (Sim R. Shapiro of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RANDALL T. ENG, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered December 23, 2008, as denied his motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants Mario Genovesi & Sons, Inc., and Reale Masonry Contractors, Inc., and the defendant Mario Genovesi & Sons, Inc., separately appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment on its cross claim for contractual and common-law indemnification against the defendant Reale Masonry Contractors, Inc.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying the plaintiff's motion for summaryjudgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants Mario Genovesi & Sons, Inc., and Reale Masonry Contractors, Inc., and substituting therefor a provision granting that motion, and (2) by deleting the provision thereof denying that branch of the cross motion of the defendant Mario Genovesi & Sons, Inc., which was for summary judgment on so much of its cross claim as sought contractual indemnification against the defendant Reale Masonry Contractors, Inc., and substitutingtherefor a provision granting that branch of the cross motion; as so modified, the order is affirmed, with one bill of costs payable by the defendant Reale Masonry Contractors, Inc., to the plaintiff and the defendant Mario Genovesi & Sons, Inc.

On January 6, 2006, the plaintiff allegedly sustained injuries while working on a residential construction project. He fell when the makeshift scaffold that he was working on collapsed. The plaintiff thereafter commenced this action against, among others, the defendant Mario Genovesi & Sons, Inc. (hereinafter Genovesi), the general contractor for the construction project, and the defendant Reale Masonry Contractors, Inc. (hereinafter Reale), the subcontractor retained by Genovesi to perform carpentry and framing work. At the time of the accident, the plaintiff was employed by IP Construction, which Reale retained to perform the framing work for the project.

The Supreme Court should have granted the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against Genovesi and Reale. The plaintiff's uncontroverted deposition testimony, which he submitted in support of his motion, demonstrated that he was working at an elevated height when the scaffold that he was instructed to build and use collapsed. Prior to his fall, the plaintiff's employer provided him with specific instructions on how to erect the scaffold. The plaintiff erected the scaffold according to these instructions and showed the completed scaffold to his employer before he stood on it. The employer approved of its construction and design. Since the scaffold collapsed, the plaintiff established, prima facie, that he was not provided with an adequate safety device to do his work, as required by Labor Law § 240(1), and that this statutory violation was a proximate cause of his injury ( see Dos Santos v. State of New York, 300 A.D.2d 434, 751 N.Y.S.2d 577; Pineda v. Kechek Realty Corp., 285 A.D.2d 496, 497, 727 N.Y.S.2d 175).

Since the plaintiff met his prima facie burden on his motion for summary judgment, the burden then shifted to Genovesiand Reale to present evidence sufficient to raise a triable issue of fact ( see Norwood v. Whiting-Turner Contr. Co., 40 A.D.3d 718, 836 N.Y.S.2d 222; Moniuszko v. Chatham...