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FISKE v. CHURCH OF ST. MARY OF THE ANGELS

May 19, 1992

JEROME E. FISKE, Plaintiff,
v.
CHURCH OF ST. MARY OF THE ANGELS, and THE L.C. WHITFORD COMPANY, INC., Defendants. CHURCH OF ST. MARY OF THE ANGELS, and THE L.C. WHITFORD COMPANY, INC., Third Party Plaintiffs, v. FISKE COMPANY II, INC., Third Party Defendant.



The opinion of the court was delivered by: LESLIE G. FOSCHIO

 JURISDICTION

 The parties filed a consent to proceed before the undersigned on November 4, 1991. This matter is presently before the court pursuant to Plaintiff's motion for summary judgment pursuant to Fed.R.Civ.P. 56(a); Defendant Church of St. Mary of the Angel's ("St. Mary") cross-motion for summary judgment against Plaintiff pursuant to Fed.R.Civ.P. 56(b); and, St. Mary's cross-motion for summary judgment against Defendants L.C. Whitford Company, Inc. ("Whitford") and Fiske Company II, Inc. ("Fiske II") for indemnification pursuant to Fed.R.Civ.P. 56(a).

 BACKGROUND

 This diversity action, arising out of a construction accident which occurred on February 27, 1989, was filed by Plaintiff, a Pennsylvania resident, on April 6, 1990, asserting causes of action against St. Mary's and Whitford, both New York corporations, for violations of New York State Labor Law, federal labor law, and negligence. On August 7, 1990, St. Mary's filed a cross-claim against Whitford for contribution and indemnification. St. Mary's also filed, on August 22, 1990, a third-party complaint against Fiske II, a Pennsylvania corporation and Plaintiff's employer, alleging causes of action for contribution and indemnification. On October 12, 1990, Whitford filed a third-party complaint against Fiske II, alleging causes of action for contribution, common law indemnification and contractual indemnification.

 On December 20, 1991, Whitford filed a motion to amend its answer to allege that Pennsylvania law applied to Plaintiff's claim, a motion for summary judgment dismissing Whitford from this action based on Pennsylvania law, and a motion for summary judgment against Fiske II for indemnification. Fiske II also filed, on January 21, 1992, a motion to amend its answer to allege that Pennsylvania law applied to this action.

 Prior to a decision on those motions, on December 27, 1991, Plaintiff filed a motion for summary judgment to establish the liability of St. Mary's and Whitford as an owner and general contractor, respectively, under New York Labor Law ยง 240. Subsequently, on December 31, 1991, St. Mary's filed a cross-motion for summary judgment against Whitford for indemnification. On March 30, 1992, St. Mary's moved for summary judgment against Plaintiff on the ground that Plaintiff willfully refused to use the safety equipment provided to him, and therefore, St. Mary's was not under the statute responsible for the accident. On the same day, St. Mary's also brought a motion for summary judgment against Fiske II for indemnification and renewed its motion for summary judgment for indemnification against Whitford.

 Oral argument on these motions was heard from counsel relative to the matter on April 27, 1992. At that time, Whitford represented that it would not oppose St. Mary's motion for summary judgment against Whitford for indemnification. In addition, St. Mary's represented that it would be deferring its motion for summary judgment against Fiske II pending the outcome of its summary judgment motion against Plaintiff.

 For the reasons as set forth below, Plaintiff's motion for summary judgment against St. Mary's and Whitford is GRANTED; St. Mary's motion for summary judgment against Plaintiff is DENIED, and St. Mary's motion for summary judgment on the issue of indemnification against Whitford is GRANTED.

 FACTS

 On February 27, 1989, Plaintiff, Jerome Fiske, was employed by Fiske II restoring the steeples at St. Mary's Church in Olean, New York. (J.F1. 51, 60). *fn1" Fiske II had been hired as a subcontractor to perform repairs and restoration at St. Mary's by the general contractor on the job, Whitford, on October 20, 1988. (J.F2. 38-40). *fn2"

 Plaintiff had driven to the work site from Erie, Pennsylvania on the morning of February 27, 1989 and had begun work at 8:00 a.m. (J.F1. 60). During that day, Plaintiff was working on the west steeple of the church, removing stones from the buttress. (J.F1. 60, 64). The area where Plaintiff was working was approximately fifty-seven feet above the ground. See, Affidavit of Daniel Barry, Licensed Land Surveyor, dated April 21, 1992. The work included a reduction or removal of the former upper portion of the buttress, leaving an area of approximately 24" x 32" for later capping with a pyramid shaped stone. (J.F3. 140-141, 154-155). *fn3" It was on this small work area that both Plaintiff, and his co-worker and supervisor, Jeffrey Fiske, were working when Plaintiff lost his footing and fell. (J.F3. 154-155).

 Subsequent to removing some loose stone from the buttress in the west steeple area, (J.F1. 66), Plaintiff removed his safety belt in anticipation of leaving the area to take an afternoon coffee break and slipped on some loose stone, falling off the steeple to the roof area, a distance of approximately twenty-five feet, and then down to the ground below, an additional distance of approximately thirty-two feet, sustaining serious physical injuries. See, Exhibit D, Supplementary Affidavit of David C. Quinn, dated March 26, 1992; *fn4" Affidavit of Daniel Barry, Licensed Land Surveyor, dated April 21, 1992. Plaintiff was taken by paramedics to a local ...


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