| Grigoropoulos v Moshopoulos |
| 2007 NY Slip Op 08188 [44 AD3d 1003] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Andreas Grigoropoulos, Appellant, v Spiros Moshopoulos,Respondent, and Tasty Pizza, Defendant and Third-Party Plaintiff-Appellant. A. International,Ltd., Third-Party Defendant-Respondent. |
—[*1] Bill Tsoumpelis, Mineola, N.Y., for defendant third-party plaintiff-appellant. Chesney & Murphy, LLP, Baldwin, N.Y. (Joyce G. Bigelow of counsel), fordefendant-respondent. Tromello, McDonnell & Kehoe, Melville, N.Y. (Kevin P. Slattery of counsel), for defendantthird-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of (1) an order of the Supreme Court, Queens County (Schulman, J.), datedMarch 6, 2006, as granted those branches of the separate motions of the third-party defendant A.International, Ltd., and the defendant Spiros Moshopoulos which were for summary judgmentdismissing the complaint insofar as asserted against them to the extent that it is premised upon analleged violation of Labor Law § 240 (1), and (2) a judgment of the same court enteredMay 18, 2006, as, upon the order, is in favor of the third-party defendant A. International, Ltd.,and the defendant Spiros Moshopoulos and against him dismissing the complaint to the extentthe complaint is premised upon an alleged violation of Labor Law § 240 (1) insofar asasserted against [*2]them, and the defendant and third-partyplaintiff Tasty Pizza, separately appeals, as limited by its notice of appeal and brief, from somuch of (1) the order dated March 6, 2006, as granted the motion of the third-party defendant A.International, Ltd., for summary judgment dismissing the complaint and all cross claims insofaras asserted against A. International, Ltd., and (2) the judgment entered May 18, 2006, as, uponthe order, is in favor of the third-party defendant A. International, Ltd., dismissing the complaintand all cross claims insofar as asserted against A. International, Ltd. The notice of appeal of thedefendant and third-party plaintiff Tasty Pizza from the order is deemed also to be a notice ofappeal from the judgment (see CPLR 5501 [c]).
Ordered that the appeals from the order are dismissed; and it is further,
Ordered that the appeal by Tasty Pizza from the judgment is dismissed, as Tasty Pizza is notaggrieved by the judgment; and it is further,
Ordered that the judgment is reversed insofar as appealed from by the plaintiff, on the law,those branches of the separate motions of the third-party defendant A. International, Ltd., and thedefendant Spiros Moshopoulos which were for summary judgment dismissing the complaintinsofar as asserted against them to the extent that it is premised upon an alleged violation ofLabor Law § 240 (1) are denied, and the order is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the plaintiff payable by the defendant SpirosMoshopoulos and the third-party defendant A. International, Ltd., and one bill of costs isawarded to the third-party defendant A. International, Ltd., payable by the defendant Tasty Pizza.
The appeals from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the plaintiff's appeal from the order are brought upfor review and have been considered on the plaintiff's appeal from the judgment (seeCPLR 5501 [a] [1]).
Contrary to the contentions of the third-party defendant A. International, Ltd. (hereinafterAIL), and the defendant Spiros Moshopoulos, the plaintiff's accident came within the ambit ofelevation-related risks to which Labor Law § 240 (1) applies. The evidence demonstratesthat the plaintiff was required to stand upon a makeshift plywood platform in order to performhis work, and that he was injured when the plywood gave way under him and he fell into thebasement below (see Godoy v Baisley Lbr. Corp., 40 AD3d 920 [2007]; Figueiredo vNew Palace Painters Supply Co. Inc., 39 AD3d 363 [2007]; Valensisi v Greens at HalfHollow, LLC, 33 AD3d 693 [2006]; John v Baharestani, 281 AD2d 114 [2001];Becerra v City of New York, 261 AD2d 188 [1999]; Ciancio v Woodlawn CemeteryAssn., 249 AD2d 86 [1998]; Tooher v Willets Point Contr. Corp., 213 AD2d 856[1995]). However, triable issues of fact exist with regard to whether liability under the statutemay be imposed against Moshopoulos under the circumstances of this case (see generallyAbbatiello v Lancaster Studio Assoc., 3 NY3d 46 [2004]), as well as with regard to whetherAIL acted as the general contractor for the project so as to subject it to liability pursuant to LaborLaw § 240 (1) (see generally Relyea v Bushneck, 208 AD2d 1077 [1994]).
We note that the judgment did not dismiss the third-party complaint of Tasty Pizza, and thatTasty Pizza does not assert any cross claims against AIL. Therefore, Tasty Pizza is not [*3]aggrieved by the judgment. Schmidt, J.P., Spolzino, Santucci andDickerson, JJ., concur.