| Gomez v Sharon Baptist Bd. of Directors, Inc. |
| 2008 NY Slip Op 08164 [55 AD3d 446] |
| October 28, 2008 |
| Appellate Division, First Department |
| Geraldo Gomez et al., Plaintiffs, v Sharon Baptist Board ofDirectors, Inc., Defendant and Third-Party Plaintiff-Appellant. S.M. Construction Co.,Third-Party Defendant-Respondent. |
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Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered February 27,2007, which, to the extent appealed from as limited by the brief, denied the cross motion ofdefendant/third-party plaintiff Sharon Baptist Board of Directors, Inc. (Sharon Baptist) forsummary judgment on its claim for contractual indemnification against third-party defendantS.M. Construction Co. (SMC), unanimously affirmed, without costs.
Plaintiff Gomez, an employee of SMC, was injured as a result of falling from a scaffold thatshifted as he performed SMC's work on premises owned by Sharon Baptist. The scaffold wheelswere not locked, and plaintiff was not provided with safety devices. Plaintiff commenced anaction against Sharon Baptist and was granted summary judgment on the issue of liability on hisLabor Law § 240 (1) cause of action.
Supreme Court correctly denied Sharon Baptist summary judgment against SMC based on itsindemnification claim. The contract between these two parties specifically provides that SMC isobligated to indemnify Sharon Baptist for losses only to the extent that they were caused inwhole or in part by the negligent acts or omissions of SMC, its agent, or anyone else for whomSMC was responsible. In its papers in support of its cross motion, Sharon Baptist reliedexclusively on plaintiff's allegations of a Labor Law § 240 violation, that is, that the lack ofsafety devices caused his accident. However, a determination of liability against the owner underLabor Law § 240 was not the equivalent of a finding of negligence. Liability under section240 is not predicated on fault but "imputed to the owner or contractor by statute and attachesirrespective of whether due care was exercised and without reference to principles of negligence"(Brown v Two Exch. Plaza Partners, 76 NY2d 172, 179 [1990]). Thus far there has beenno finding that either SMC or its agents were negligent let alone that such negligenceproximately caused plaintiff's injuries. Accordingly, summary judgment on the contractualindemnification claim is premature[*2] (see DiPerna vAmerican Broadcasting Cos., 200 AD2d 267, 270 [1994]; Cichon v Brista EstatesAssoc., 193 AD2d 926, 927-928 [1993]). Concur—Andrias, J.P., Nardelli, McGuire,Moskowitz and Renwick, JJ.