| Mihelis v i.park Lake Success, LLC |
| 2008 NY Slip Op 09182 [56 AD3d 355] |
| November 20, 2008 |
| Appellate Division, First Department |
| Constantinos Mihelis, Respondent-Appellant, v i.park LakeSuccess, LLC, et al., Appellants-Respondents, and The VSA Group, Respondent. i.park LakeSuccess, LLC, et al., Third-Party Plaintiffs-Appellants, v Professional Waterproofing &Restoration, Inc., Third-Party Defendant-Respondent. (And a Second Third-PartyAction.) |
—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), forrespondent-appellant. L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City (Douglas R. Halstrom ofcounsel), for The VSA Group, respondent. Torino & Bernstein, PC, Mineola (Vincent J. Battista of counsel), for ProfessionalWaterproofing & Restoration, Inc., respondent.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered October 24, 2007,which, insofar as appealed from, denied plaintiff's motion for summary judgment as to liabilityon his Labor Law § 240 (1) claim and denied the motion of defendants/third-partyplaintiffs i.park Lake Success and Ball Construction for summary judgment dismissing plaintiff'scommon-law negligence and Labor Law §§ 200 and 240 (1) claims and on theirclaim for contractual indemnification against second third-party plaintiff ProfessionalWaterproofing & Restoration, unanimously modified, on the law, to grant plaintiff's motion, andotherwise affirmed, without costs.[*2]
Plaintiff and a coworker were working on a constructionproject when the roof panel on which they were standing snapped in half and collapsed, and thetwo men crashed to the floor below. Plaintiff was severely injured; his coworker was killed. Theevidence establishing that plaintiff was not provided with any safety devices demonstrates primafacie his entitlement to judgment as a matter of law on his Labor Law § 240 (1) claim(see Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524 [1985]). Inopposition, defendants failed to raise a triable issue. That there may have been safety devices"somewhere at the worksite does not establish 'proper protection' " (id.).
This Court's recent decision in Jones v 414 Equities LLP (57 AD3d 65 [2008]) is inapplicable to this matter. That case involved the collapse ofan interior permanent floor which was not part of the demolition and renovation work beingperformed, and there was no evidence showing that the condition of the floor placed the workersat an elevation-related risk. Here, in contrast, the assigned task by its very nature created anelevation-related risk, in that it involved replacing substandard precast concrete panels on theroof of a building.
In view of the evidence that defendants proceeded with the construction project despite theirknowledge that the roof was in a defective condition and that at least some of the workers werenot adequately protected against the dangers of the job, the court correctly denied dismissal ofplaintiff's common-law negligence and Labor Law § 200 claims and denied as prematuredefendants' claims for contractual indemnification against Professional Waterproofing &Restoration. Concur—Tom, J.P., Saxe, Sweeny, Catterson and DeGrasse, JJ. [See2007 NY Slip Op 33459(U).]