| DiPasquale v M.J. Ogiony Bldrs., Inc. |
| 2009 NY Slip Op 02057 [60 AD3d 1338] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| Jack L. DiPasquale, Respondent-Appellant, v M.J. OgionyBuilders, Inc., et al., Appellants-Respondents. |
—[*1] Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Kevin E. Loftus of counsel), fordefendant-appellant-respondent Fisher Homes, LLC. Paul William Beltz, P.C., Buffalo (Debra A. Norton of counsel), forplaintiff-respondent-appellant.
Appeals and cross appeal from an order of the Supreme Court, Erie County (Diane Y.Devlin, J.), entered February 1, 2008 in a personal injury action. The order, inter alia, granted themotion of plaintiff for partial summary judgment pursuant to Labor Law § 240 (1) againstdefendant Fisher Homes, LLC.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motion and by denying in its entirety the cross motion of defendant M.J. OgionyBuilders, Inc. and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he allegedly sustained while installing drywall in a home underconstruction. Supreme Court granted plaintiff's motion for partial summary judgment on liabilityunder Labor Law § 240 (1) against defendant Fisher Homes, LLC (Fisher). In addition, thecourt granted that part of the cross motion of Fisher for summary judgment dismissing the LaborLaw § 241 (6) claim against it, denied the cross motion of defendant M.J. OgionyBuilders, Inc. (Ogiony) insofar as it sought summary judgment dismissing the complaint againstit, and granted the alternative relief sought by Ogiony, i.e., summary judgment on its cross claimfor common-law indemnification against Fisher.
We agree with Fisher that the court erred in granting plaintiff's motion against it, and wetherefore modify the order accordingly. Although plaintiff met his initial burden on the motionwith respect to Fisher, we conclude that Fisher raised an issue of fact whether "plaintiff was. . . injured while falling from, or attempting to prevent himself from falling from,the scaffold" (Milligan v Allied Bldrs.,Inc., 34 AD3d 1268 [2006]; see Hicks v Montefiore Med. Ctr., 266 AD2d 14[1999]; cf. Pulsifer v Eastman Kodak Co., 219 AD2d 880 [1995]). "The fact that aworker is injured while working above ground does not ipso facto mean that the injury resultedfrom an elevation-related [*2]risk contemplated by section 240(1) of the Labor Law" (Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 977[2003]). Here, Fisher submitted evidence that plaintiff was injured when he tripped and fell ontothe scaffold upon which he was working, thereby raising a triable issue of fact whether"plaintiff's injury was not related to the effects of gravity and could have happened at groundlevel" (Auchampaugh v SyracuseUniv., 57 AD3d 1291, 1293 [2008]; see generally Bonaparte v Niagara MohawkPower Corp., 188 AD2d 853 [1992], appeal dismissed 81 NY2d 1067 [1993]).
We also agree with Fisher that the court erred in granting the cross motion of Ogiony forsummary judgment on its cross claim for common-law indemnification against Fisher, thealternative request for relief in the cross motion, and we therefore further modify the orderaccordingly. In seeking that relief, Ogiony was required to establish as a matter of law that it wasnot negligent, and that Fisher was either "guilty of some negligence that contributed to thecausation of the accident" (Correia v Professional Data Mgt., 259 AD2d 60, 65 [1999];see Priestly v Montefiore Med.Ctr./Einstein Med. Ctr., 10 AD3d 493, 495 [2004]), or that Fisher had "the authority todirect, supervise, and control the work giving rise to the injury" (Hernandez v Two E. EndAve. Apt. Corp., 303 AD2d 556, 557 [2003]). Ogiony relied upon the latter theory ofliability, and we conclude that it failed to submit evidence establishing as a matter of law thatFisher had the requisite authority to direct, supervise and control the work site (see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]).
With respect to that part of the cross motion of Ogiony seeking summary judgmentdismissing the Labor Law claims against it, we conclude that it failed to meet its initial burden ofestablishing as a matter of law that it did not own the property where the accident occurred.Thus, the court properly denied that part of the cross motion (cf. Ryba v Almeida, 27 AD3d 718 [2006]; see generally Goodell v Rosetti, 52AD3d 911, 914 [2008]). Finally, we reject plaintiff's contention that the court erred ingranting that part of the cross motion of Fisher for summary judgment dismissing the Labor Law§ 241 (6) claim against it. Here, Fisher established as a matter of law that the IndustrialCode regulation upon which plaintiff relies for the alleged violation of Labor Law § 241(6), i.e., 12 NYCRR 23-1.7 (b) (1), does not apply to plaintiff's fall from a scaffold (see generally Hotaling v Corning Inc.,12 AD3d 1064, 1065 [2004]), and plaintiff failed to raise a triable issue of fact.
We have considered the remaining contentions of the parties and conclude that they arewithout merit. Present—Hurlbutt, J.P., Martoche, Smith, Centra and Peradotto, JJ.