Mazure Director Wilkins Young & Yagerman, P.C., New York
(Marcia K. Raicus of counsel), for Schafer Mews Housing
Development Fund Corporation and Mega Contracting Inc.,
Malapero & Prisco, LLP, New York (Carol R. Finocchio of
counsel), for Demand Electric, Inc., appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian
J. Isaac of counsel), for Wojciech Jarzabek, respondent.
Weiner, Millo, Morgan & Bonanno, LLC, New York (Kristy
D'Ambrosio of counsel), for Rocky's Contracting,
Friedman, J.P., Sweeny, Gesmer, Kern, Singh, JJ.
Supreme Court, New York County (Debra A. James, J.), entered
July 21, 2017, which, insofar as appealed from, granted
plaintiff's motion for summary judgment on the issue of
liability on his Labor Law § 240(1) claim, granted that
part of defendants Mega Contracting Group LLC and Schafer
Mews Housing Development Fund Corporation's (Owner
Defendants) motion for summary judgment on their contractual
indemnification claim against third third-party defendant
Demand Electric Inc. (Demand) and denied the motion to the
extent it sought summary judgment on the claims for
common-law and contractual indemnification against second
third-party defendant Rocky's Contracting Inc.
(Rocky's), and granted Rocky's motion for summary
judgment dismissing all claims, cross claims and
counterclaims as against it, unanimously modified, on the
law, Rocky's motion for summary judgment denied, and
otherwise affirmed, without costs.
electrician was injured when he fell from a makeshift wooden
ladder while negotiating the distance between the first-floor
slab of the building under construction and the ground about
five feet below, as he was helping unload a delivery of
supplies that was being unloaded from the truck on ground
level and placed on the slab. Although plaintiff had been
provided an A-frame ladder that morning which was in the
basement of the building, the parties cite no evidence
contradicting plaintiff's testimony that he could not use
it to access the slab because the ground was covered in dirt,
debris, and rocks.
decision to use the makeshift ladder that his coworkers were
also allegedly using was not the sole proximate cause of the
accident where he was never instructed not to use it (see
Nacewicz v Roman Catholic Church of the Holy Cross, 105
A.D.3d 402, 403 [1st Dept 2013]; Conklin v Triborough
Bridge & Tunnel Auth., 49 A.D.3d 320');">49 A.D.3d 320 [1st Dept
2008]). Moreover, where no proper safety device was provided,
the fact that his boots may have been untied or that he may
have been descending the makeshift ladder backwards was not
the sole proximate cause of his accident (see Messina v
City of New York, 148 A.D.3d 493, 494 [1st Dept 2017]).
accident arose from the means and methods of accessing the
slab (see Lombardi v Stout, 80 N.Y.2d 290, 294-295
). Since there is no dispute that plaintiff was
supervised and directed solely by his employer, Demand, which
provided him with materials and equipment, the Owner
Defendants were not negligent in the happening of the
accident (see Cappabianca v Skanska USA Bldg. Inc.,
99 A.D.3d 139, 144 [1st Dept 2012]), and thus, the motion
court correctly granted summary judgment on their claim
against Demand for contractual indemnification. However,
because issues of fact exist regarding whether ...