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Greaves v. Obayashi Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 23, 2009

HENDERSON GREAVES, PLAINTIFF,
v.
OBAYASHI CORPORATION, ET AL., DEFENDANTS-APPELLANTS, EIC ASSOCIATES, INC., DEFENDANT, TOTAL SAFETY CONSULTING, LLC, DEFENDANT-RESPONDENT. OBAYASHI CORPORATION, ET AL., THIRD-PARTY PLAINTIFFS-APPELLANTS, EIC ASSOCIATES, INC., THIRD-PARTY PLAINTIFF, TOTAL SAFETY CONSULTING, LLC, THIRD-PARTY DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Carol Edmead, J.), entered June 5, 2008, which, upon reargument, granted defendant Total Safety's motion for summary judgment dismissing plaintiff's Labor Law § 240(1) cause of action as well as all third-party and cross claims against it, unanimously reversed, on the law, without costs, the motion denied, and the complaint and claims against Total Safety reinstated.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Mazzarelli, Saxe, Moskowitz, Richter, JJ.

107729/08

When a concrete wall on which plaintiff was working collapsed, concrete blocks fell against the unsecured scaffold he was standing on, knocking it over and causing him to fall to the ground. The portion of the wall where plaintiff was working was neither braced nor secured, and he was not wearing a harness.

Upon reargument, the court erred in determining that there was no issue of fact as to whether Total Safety had the authority to supervise and control plaintiff's use of the scaffold (compare Barraco v First Lenox Terrace Assoc., 25 AD3d 427, 428 [2006], with Doherty v City of New York, 16 AD3d 124 [2005]). The evidence indicates that pursuant to the general contract with defendant Howell, Total Safety's site safety manager was at the worksite on a daily basis, inspected the workers and the scaffold several times a day, and was required to "make certain" that the scaffold was properly equipped.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090423

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