| D'Angelo v Builders Group |
| 2007 NY Slip Op 08403 [45 AD3d 522] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Archangelo D'Angelo et al., Respondents, v BuildersGroup, Defendant and Third-Party Plaintiff-Appellant-Respondent, New York City DistrictCouncil of Carpenters Pension Fund et al., Respondents, et al., Defendants. Caruso Painting andDecorating Corp., Third-Party Defendant-Respondent-Appellant. |
—[*1] O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Michael T. Reagan ofcounsel), for third-party defendant-respondent-appellant. Werbel, Werbel & Verchick (Glenn Verchick and Pollack, Pollack, Isaac & De Cicco, NewYork, N.Y. [Brian J. Isaac] of counsel), for plaintiffs-respondents.
In an action to recover damages for personal injuries, etc., (1) the defendant third-partyplaintiff Builders Group, appeals (a) as limited by its brief, from so much of an order of theSupreme Court, Kings County (Schmidt, J.), dated February 15, 2006, as denied its cross motionfor summary judgment on its cause of action for contractual indemnification insofar as assertedagainst the third-party defendant Caruso Painting and Decorating Corp. and, in effect, forsummary judgment dismissing the complaint insofar as asserted against it and (b) from an orderof the same court dated September 15, 2006, and (2) the third-party defendant Caruso Paintingand Decorating Corp. cross-appeals, (a) as limited by its brief, from so much of the order datedFebruary 15, 2006, [*2]as denied its cross motion for summaryjudgment dismissing, inter alia, the complaint and the third-party complaint and (b) from theorder dated September 15, 2006.
Ordered that the appeal by the defendant third-party plaintiff, Builders Group, from so muchof the order dated, September 15, 2006, as denied that branch of its motion which was for leaveto renew and the cross appeal from the order dated September 15, 2006, are dismissed asabandoned; and it is further,
Ordered that the appeal by the defendant third-party plaintiff Builders Group from so muchof the order dated September 15, 2006, as denied that branch of its cross motion which was forleave to reargue is dismissed, as no appeal lies from an order denying reargument (see Munzv La Guardia Hosp., 109 AD2d 731 [1985]); and it is further,
Ordered that the order dated February 15, 2006 is affirmed insofar as appealed andcross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff Archangelo D'Angelo (hereinafter D'Angelo) was injured when he fell from aladder while plastering a column at a construction site where the defendant third-party plaintiffBuilders Group (hereinafter Builders) was the construction manager, and the plaintiff's employer,the third-party defendant Caruso Painting and Decorating Corp. (hereinafter Caruso) was thepainting and plastering subcontractor. D'Angelo and his wife (hereinafter the plaintiffs)commenced this action against Builders, among others, to recover damages for personal injuriesarising from, inter alia, a violation of Labor Law § 240 (1). Builders subsequentlycommenced a third-party action against Caruso for, among other things, contractualindemnification.
The plaintiffs cross-moved, inter alia, for summary judgment on their Labor Law §240 (1) cause of action. Caruso cross-moved for summary judgment dismissing, among otherthings, the complaint and the third-party complaint. Builders cross-moved for summary judgmenton its third-party cause of action against Caruso for contractual indemnification, and joined inthat branch of Caruso's cross motion which was for summary judgment dismissing the complaint.
With respect to the Labor Law § 240 (1) cause of action, Builders and Caruso failed toestablish their prima facie entitlement to judgment as a matter of law by showing that D'Angelohad access to properly-placed and adequate safety devices (cf. Marin v Levin Props.,LP, 28 AD3d 525, 526 [2006]; Palacios v Lake Carmel Fire Dept., Inc., 15 AD3d 461, 462-463[2005]). Moreover, the Supreme Court properly found that a triable issue of fact exists as towhether D'Angelo's conduct was the sole proximate cause of his accident (see Marin v LevinProps., LP, 28 AD3d at 526; cf. Robinson v East Med. Ctr., LP, 6NY3d 550, 554-555 [2006]). The plaintiffs' request that we search the record and award themsummary judgment on the issue of liability on their Labor Law § 240 (1) cause of action isdenied; their cross motion seeking that relief, and that branch of Caruso's cross motion whichwas for summary judgment dismissing the cause of action based on Labor Law § 240 (1),in which Builders joined, were properly denied (see Florio v LLP Realty Corp., 38 AD3d 829, 830 [2007]).
The Supreme Court also properly denied that branch of Builders' cross motion which was forsummary judgment on its third-party cause of action seeking contractual indemnification againstCaruso and that branch of Caruso's cross motion which was for summary judgment [*3]dismissing the third-party complaint. " '[T]he right to contractualindemnification depends upon the specific language of the contract' " (Kader v City of N.Y., Hous. Preserv. &Dev., 16 AD3d 461, 463 [2005], quoting Gillmore v Duke/Fluor Daniel, 221AD2d 938, 939 [1995]). The indemnification provision at issue here requires Caruso toindemnify Builders for "all claims, damages, losses and expenses . . . arising out ofor resulting from the performance of the Work . . . provided such claim, damage,loss or expense is caused in whole or in part by any act or omission of this Subcontractor." Sinceit has not been determined whether D'Angelo's injury was caused by any act or omission byCaruso, an award of summary judgment here would be premature (see Gentile v Merrill Lynch, Pierce, Fenner& Smith, Inc., 9 Misc 3d 111 [2005]; cf. Brown v Two Exch. Plaza Partners, 76NY2d 172 [1990]). Crane, J.P., Florio, Angiolillo and Carni, JJ., concur.