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JOBLON v. SOLOW

February 13, 1996

RICHARD JOBLON and MAGDALENA JOBLON, Plaintiffs, against SHELDON H. SOLOW and AVON PRODUCTS, INC., Defendants. SHELDON H. SOLOW, Third-Party Plaintiff, - against - GELLERE ELECTRIC CONSTRUCTION & MAINTENANCE, INC., Third-Party Defendant.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 Plaintiffs Richard Joblon ("Joblon") and Magdalena Joblon (collectively, "the Joblons") have moved for partial summary judgment under Rule 56, Fed. R. Civ. P., declaring that Section 240(1) of the Labor Law of the State of New York (McKinney 1986) ("Section 240(1)") applies to the Joblons' claim for damages arising out an injury suffered by Joblon while working as an electrician on property owned by defendant Sheldon H. Solow ("Solow") and leased by defendant Avon Products, Inc. ("Avon"). Solow has moved, under the same rule, for summary judgment for indemnification against co-defendant Avon and against third-party defendant Geller Electric Construction and Maintenance, Inc. ("Geller"), the employer of Joblon. Avon has moved for summary judgment declaring a right to indemnification by Geller. Geller has moved for summary judgment that Section 240(1) does not apply and that Joblon, Wayne Gordon ("Gordon"), and George Schwab ("Schwab") were special employees of Avon.

 For the reasons set forth below, the Joblons' motion will be denied. Geller's motion for summary judgment that Section 240(1) does not apply to the facts of this case will be granted. Geller's motion for summary judgment that Joblon, Schwab, and Gordon were special employees of Avon will be denied. Solow's motions for summary judgment will be granted as to Avon and denied as to Geller. Avon's motion for summary judgment will be denied.

 Prior Proceedings

 The complaint of the Joblons against Solow and Avon was filed on February 1, 1994, alleging diversity jurisdiction and a claim for personal injuries suffered when Joblon fell from a step-ladder while working on Solow's property. Solow filed his third-party complaint against Geller on June 2, 1994, and on August 8, 1994, Avon filed its cross-claim against Geller. Discovery proceeded, and the instant motions were heard and submitted on November 29, 1995.

 The Facts

 Joblon is an electrician employed by Geller, which in turn had been hired by Avon to provide ongoing services as house electrician at the building at 9 West 57th Street, New York City. That building is owned by Solow, and Avon a tenant under a lease containing a clause which indemnified Solow for certain acts committed by Avon.

 On January 30, 1992, Joblon had been working in the Avon space as an electrician for ten days. On that date, in accordance with the routine for job assignments, he was directed by Gordon, the foreman from Geller, to install an electric wall clock in the Avon mail room on the twentieth floor as had been requested by the Avon facilities supervisor. Together with Schwab, his co-worker, Joblon obtained the equipment necessary to perform this assignment from a storeroom under the control of Geller, including a six- or eight-foot wooden A-frame ladder (the "Ladder"). Joblon proceeded to a small room adjacent to the mail room in order to run an electrical line from an outlet in that room through the wall to provide electrical power for the clock which was to be installed on the mail room wall.

 Shortly before one o'clock, Schwab went to the mail room on the other side of the wall. Joblon retrieved additional materials and started up the Ladder when it shifted. He lost his balance and fell backwards while throwing out his arms to break his fall. In so doing, he suffered injuries which subsequently required two surgical procedures and extensive medical care. He has alleged a permanent, partial disability and no longer works.

 These facts are established by the submissions of the parties and are not in dispute.

 Discussion

 I. Standard for Summary Judgment

 The instant motion is brought pursuant to Rule 56. The Rule 56 motion for summary judgment is "an integral part" of the Federal Rules of Civil Procedure and facilitates the overall purpose of the Rules as stated in Federal Rule of Civil Procedure 1: namely, "to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327. A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Rule 56(c), Fed. R. Civ. P.; Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991). If, when "viewing the evidence produced in the light most favorable to the nonmovant . . . a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).

 II. Section 240 Does Not Apply to These Facts

 Section 240 has given rise to more than its fair share of litigation and amendment going back to its origins in 1885. It ...


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