Uhl v. D'Onofrio Gen. Contractors, Corp.

• Decision Date: 25 August 2021
• Docket Number: 2018-14102,Index 16726/12
• Parties: Timothy Uhl, et al., plaintiffs-respondents, v. D'Onofrio General Contractors, Corp., defendant third-party plaintiff-appellant-respondent, STV Construction, Inc., et al., defendants-respondents, et al., defendants; Bayer MaterialScience, LLC, third-party defendant-respondent-appellant.
• Court: New York Supreme Court

2021 NY Slip Op 04778

Timothy Uhl, et al., plaintiffs-respondents,
v.
D'Onofrio General Contractors, Corp., defendant third-party plaintiff-appellant-respondent,

STV Construction, Inc., et al., defendants-respondents, et al., defendants; Bayer MaterialScience, LLC, third-party defendant-respondent-appellant.

Index No. 16726/12

Supreme Court of New York, Second Department

August 25, 2021

Cullen and Dykman, LLP, New York, NY (Adrienne Yaron and Olivia M. Gross of counsel), for defendant third-party plaintiff-appellant-respondent.

Reed Smith, LLP, New York, NY (Oliver Beiersdorf of counsel), for third-party defendant-respondent-appellant.

Robert A. Cardali & Associates, LLP, New York, NY (Martin Grossman of counsel), for plaintiffs-respondents.

Law Office of Fern Flomenhaft, PLLC, New York, NY, for defendants-respondents.

REINALDO E. RIVERA, J.P. SYLVIA O. HINDS-RADIX LINDA CHRISTOPHER PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals, and the third-party defendant cross-appeals, from an order of the Supreme Court, Kings County (Johnny Lee Baynes, J.), dated October 4, 2018. The order, insofar as appealed from, denied those branches of the defendant third-party plaintiff's motion which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against it, and granted, without prejudice, the third-party defendant's motion for summary judgment dismissing the third-party complaint. The order, insofar as cross-appealed from, granted, without prejudice, the third-party defendant's motion for summary judgment dismissing the third-party complaint.

ORDERED that the cross appeal is dismissed, as the third-party defendant is not aggrieved by the portion of the order cross-appealed from (see CPLR 5511; Mixon v TBV, Inc., 76 A.D.3d 144; see also D. R. v Kazachok, 155 A.D.3d 657, 657-658); and it is further, ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendant third-party plaintiff's motion which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against it, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the appellant, payable by the plaintiffs-respondents and the defendants-respondents appearing separately and filing separate briefs.

On October 11, 2011, the plaintiff Timothy Uhl (hereinafter the injured plaintiff), an elevator inspector employed by the New York City Housing Authority, allegedly was injured when he fell from one end of a catwalk connecting the roofs of two buildings in a housing development in...