The opinion of the court was delivered by: ROBERT W. SWEET
The plaintiffs, James Violette ("Violette") and Loretta Violette ("Mrs. Violette") (collectively, the "Violettes") have moved for summary judgment against defendants Armonk Associates, L.P. ("Armonk"), CMC Realty and Development, Inc. ("CMC"), Carol Management Corp. ("Carol") and Elmar Contracting Corp. ("Elmar") to establish liability of the defendants under New York Labor Law § 240(1). Defendants Armonk, CMC, and Carol have cross-moved against Elmar for indemnity. For the reasons set forth below, the motion of the Violettes is denied, and the cross-motion of Armonk, CMC, and Carol is granted.
This action was commenced in July, 1990, arising out of an accident on November 10, 1988 injuring Violette. The motions and cross-motions were argued and marked submitted on June 18, 1992.
Carol intended to develop a property on Sheather Road in Armonk to be called Dellwood Estates on which condominiums were proposed-to be built. In the course of the project, on April 7, 1987, Carol sold the property to Dellwood Associates.
On November 10, 1988 Elmar rented a bulldozer and ripper from the third party defendant Major Machinery ("Major") to break ground and rocks in connection with the proposed excavation. The bulldozer and ripper were brought to the property by Major, and Violette, an employee of Major, undertook to attach the ripper, which weighed 10,600 pounds, to the bulldozer. In order to lift the ripper into position for attachment, Violette asked assistance from Elmar which provided a track loader to lift the ripper.
The bucket of the track loader was attached by a chain manufactured by defendant Campbell Chain Co., Inc. ("Campbell") to the ripper. The track loader hoisted the ripper off the ground and into position for attachment to the bulldozer by aligning and seating the pin attachments.
Violette was under the ripper after it was hoisted in order to accomplish the attachment. The chain broke, the ripper fell on Violette, who suffered injuries. No other hoists, stays, blocks, slings, or cables were involved.
New York Labor Law § 240 (1) provides as follows:
All contractors and owners and their agents . . . who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
Labor Law § 240 (1) (McKinney 1986).
Section 240(1) is known as "the Scaffolding Law," and was enacted in order to protect workers who were working at elevated heights at a construction site. Cliquennoi v. Michaels Group, 178 A.D.2d 839, 577 N.Y.S.2d 550 (3rd Dept. 1991).
The issue is thus presented as to whether § 240(1) is applicable to the facts here presented.
Section 240(1) Is Not Applicable
Violette was on the site pursuant to his employment. Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 561 N.Y.S.2d 892, 563 N.E.2d 263 (1990), but was not employed in the sort of activity contemplated by the scaffolding law, the ...