| Bradley v IBEX Constr., LLC |
| 2008 NY Slip Op 07061 [54 AD3d 626] |
| September 25, 2008 |
| Appellate Division, First Department |
| Robert Bradley et al., Appellants-Respondents, v IBEXConstruction, LLC, Respondent, and Home Depot U.S.A., Inc. et al., Respondents-Appellants, etal., Defendant. IBEX Construction, LLC, Second Third-Party Plaintiff-Appellant, v SageElectrical Contracting, Inc., Second Third-Party Defendant-Respondent. (And a Third-PartyAction.) |
—[*1] French & Rafter, LLP, New York (Howard K. Fishman of counsel), for IBEX Construction,LLC, respondent-appellant. D'Amato & Lynch, LLP, New York (Arturo M. Boutin of counsel), for Home Depot U.S.A., Inc. and 23rd St. Properties, LLC, respondents-appellants. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville (Eileen M. Baumgartner of counsel),for Sage Electrical Contracting, Inc., respondent.
Judgment, Supreme Court, New York County (Walter J. Relihan, Jr., J., at trial and post-trialmotion to set aside verdict; Louis B. York, J., on post-trial motion to dismiss third-party actionand cross claims), entered December 5, 2007, after a jury verdict in favor of defendants on theissue of liability under Labor Law § 240 (1), unanimously modified, on the law, plaintiffs'[*2]motion to set aside the verdict granted, judgment directed infavor of plaintiffs on the issue of liability pursuant to section 240 (1), the claims and cross claimsfor indemnification against second third-party defendant Sage Electrical Contracting, Inc.reinstated, the matter remanded for trial on damages and apportionment of fault amongdefendants, and otherwise affirmed, without costs. Appeals from orders, same court (RosalynRichter, J.), entered June 8, 2006, and (Walter J. Relihan, Jr., J.), entered December 15, 2006,which, to the extent appealed from as limited by the briefs, denied plaintiffs' respective motionsfor partial summary judgment on their section 240 (1) claim, and to set aside the verdict,unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
The motion court properly denied plaintiffs' motion for partial summary judgment. Plaintiffsestablished a prima facie case that defendants and second third-party defendant violated LaborLaw § 240 (1) by failing to ensure the proper placement of the ladder due to the conditionof the floor, but a triable issue of fact was raised by the accident report, which indicated thatplaintiff worker had tripped on the plastic-covered floor and did not fall from the ladder (see e.g. Potter v NYC Partnership Hous.Dev. Fund Co., Inc., 13 AD3d 83, 85 [2004]; cf. Klein v City of New York, 89NY2d 833, 835 [1996]). The court properly determined that the accident report was admissible asa business record (see Buckley v J.A.Jones/GMO, 38 AD3d 461, 462-463 [2007]). A proper foundation was established foradmission of the accident report into evidence under the business record exception to the hearsayrule (see Petrocelli v Tishman Constr.Co., 19 AD3d 145 [2005]). Accordingly, denial of plaintiffs' motion for a directedverdict on the issue of liability was proper because the accident report raised an issue of fact as towhether the alleged violation of section 240 (1) proximately caused his accident (see e.g. Holtv Welding Servs., 264 AD2d 562, 563 [1999], lv dismissed 94 NY2d 899 [2000]).The trial court properly charged the jury as to sole proximate cause (see 1B NY PJI3d2:217, at 1153 [2008]; Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003]).
However, the motion court improperly denied plaintiffs' post-trial motion to set aside theverdict and for judgment notwithstanding the verdict. Since the jury determined that plaintiffworker fell off the ladder, it could not have reasonably concluded, in light of the evidence, thatthe ladder was placed and used so as to give him proper protection in the performance of hiswork. Other than the accident report, which the jury clearly rejected, defendants and secondthird-party defendant failed to present any evidence controverting plaintiffs' version of theaccident, i.e., that the ladder had slipped on the plastic-covered floor. Furthermore, there was noevidence to suggest that plaintiff worker's own actions were the sole proximate cause of hisinjury (see Bonanno v Port Auth. of N.Y. & N.J., 298 AD2d 269 [2002]). Theinconsistencies between his trial testimony and his prior statements were not material to the issueof how the accident occurred, and he consistently testified that he had fallen because the ladderhad slipped on the plastic (see e.g.Ernish v City of New York, 2 AD3d 256, 257 [2003]).
The motion court properly granted second third-party defendant's motion to dismiss thatthird-party action and any cross claims for indemnification against it. The trial court clearlydirected that any post-trial motions, including motions regarding indemnification, be submittedto the court within 15 days of the verdict. Since defendants IBEX, Home Depot and 23rd St.failed to move within the 15 days or to assert their indemnification claims in response toplaintiffs' timely motion as required by CPLR 4406, and failed to give an adequate reason for thedelay, their claims were properly dismissed at that time (compare Tesciuba v Cataldo,189 AD2d 655 [1993], lv dismissed 82 NY2d 846 [1993], with Brown v Two Exch.Plaza Partners, 146 [*3]AD2d 129, 140 [1989], affd76 NY2d 172 [1990]). Nevertheless, our reinstatement of plaintiff's claims against defendants isa fundamental change in those circumstances, and the concomitant reinstatement of defendants'claims and cross claims against Sage for indemnification, which arise out of those claims, is nowwarranted. Concur—Saxe, J.P., Nardelli, Moskowitz, Acosta and DeGrasse, JJ.
Reargument granted, and upon reargument, the decision and order of this Court entered onJune 26, 2008 (52 AD3d 433 [2008]) recalled and vacated and a new decision and ordersubstituted therefor. Leave to appeal to the Court of Appeals denied.