| Metus v Ladies Mile Inc. |
| 2008 NY Slip Op 04565 [51 AD3d 537] |
| May 20, 2008 |
| Appellate Division, First Department |
| Fisnik Metus, Respondent, v Ladies Mile Inc. et al.,Defendants and Third-Party Plaintiffs-Appellants. Prestige Construction Services, Inc.,Third-Party Defendant-Appellant-Respondent. |
—[*1] French & Rafter, LLP, New York (Tom E. Byrne of counsel), for Prestige ConstructionServices, Inc., appellant-respondent. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), forrespondent.
Order and judgment (one paper), Supreme Court, New York County (Rolando T. Acosta, J.),entered October 15, 2007, which, to the extent appealed from as limited by the briefs, grantedplaintiff's motion for partial summary judgment on his Labor Law § 240 (1) claim, deniedthe motions of defendants VJB Construction Corp. and Regional Scaffolding & Hoisting Co.,Inc. and third-party defendant Prestige Construction Services, Inc. for summary judgmentdismissing plaintiff's Labor Law § 200 and common-law negligence claims as against VJBand Regional, and denied VJB's and Regional's motion for summary judgment on their claims forcontractual and common-law indemnification against Prestige, unanimously affirmed, withoutcosts.
As plaintiff handed a sheet of corrugated tin up to a coworker standing on top of a scaffoldunder construction, a beam (known as a "junior beam") on which the tin sheet was to be placedbecame dislodged, fell from the scaffold, and struck plaintiff in the face. Although there wasconflicting testimony on whether the beam at issue should have been secured, that question offact is immaterial in the circumstances of this case. It is uncontroverted that at the time thescaffold was being erected, the junior beam was simply not clamped to the header beam onwhich it rested. Thus, the junior beam, situated eight to nine feet above the ground, was a "fallingobject" for purposes of Labor Law § 240 (1) protection (see Outar v City of New York, 5 NY3d731 [2005], affg 286 AD2d 671 [2001]; Boyle v 42nd St. Dev. Project, Inc., 38 AD3d 404 [2007]; see also Salinas v Barney Skanska Constr.Co., 2 AD3d 619, 621-622 [2003]). Similarly, it is beyond cavil that section 240 (1)protection applies not only to workers utilizing scaffold [*2]orhoisting devices in the performance of their work, but also to " 'the very same (and other)workers when they erect and demolish such devices' " (Kyle v City of New York, 268AD2d 192, 197 [2000], lv denied 97 NY2d 608 [2002], quoting Alderman v State ofNew York, 139 Misc 2d 510, 515 [1988]).
Regional's and VJB's arguments that their responsibility for overseeing the work and for sitesafety supervision did not rise to the level necessary to support a Labor Law § 200 orcommon-law negligence claim is misplaced since these defendants were responsible for thedesign of the scaffold and the method of its construction (see Griffin v New York City Tr. Auth., 16 AD3d 202, 202-203[2005]).
In light of the unresolved liability issues, the court did not err in denying Regional's andVJB's motion for summary judgment on their claims for contractual and common-lawindemnification against Prestige.
We have considered the parties' remaining arguments for affirmative relief and find themunavailing. Concur—Gonzalez, J.P., Catterson, McGuire and Moskowitz, JJ. [See2007 NY Slip Op 33240(U).]