| Vukovich v 1345 Fee, LLC |
| 2009 NY Slip Op 03026 [61 AD3d 533] |
| April 21, 2009 |
| Appellate Division, First Department |
| Michael F. Vukovich, Respondent-Appellant, v 1345 Fee,LLC, et al., Defendants, Plaza Construction Corp., Appellant-Respondent, and ADCO ElectricalCorp., Respondent. |
—[*1] James J. McCrorie, P.C., Jericho, for respondent-appellant. French & Rafter, LLP, New York (Lance E. Benowitz of counsel), for respondent.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered May 1, 2008,which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partialsummary judgment on the issue of liability on his Labor Law § 240 (1) cause of action,and denied the cross motion of defendant Plaza Construction Corp. (Plaza) for summaryjudgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims andon its claim for contractual indemnification against defendant ADCO Electrical Corp. (ADCO),unanimously modified, on the law, plaintiff's motion granted, and otherwise affirmed, withoutcosts.
Plaintiff was injured when, while working as a pipe fitter at the premises being renovated, hereceived an electric shock and fell from the third or fourth rung of an unsecured A-frame ladder.There were no witnesses to the accident.
The evidence demonstrates that plaintiff was entitled to partial summary judgment on theissue of liability on his Labor Law § 240 (1) claim. The ladder provided to plaintiff wasinadequate to prevent him from falling five to seven feet to the floor after being shocked, andwas a proximate cause of his injuries (see Williams v 520 Madison Partnership, 38 AD3d 464 [2007];Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289 [2002]). That plaintiff had norecollection of falling to the floor does not alter this result (see Felker v Corning Inc., 90NY2d 219 [1997]).
Since there are questions of fact concerning Plaza's authority to control the activity inquestion, summary judgment was properly denied with respect to the Labor Law § 200and [*2]common-law negligence causes of action (Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505-506 [1993]). Those same issues of factpreclude an award of contractual indemnification in favor of Plaza at this time (see Pardo v Bialystoker Ctr. & BikurCholim, Inc., 10 AD3d 298, 301 [2004]). Concur—Mazzarelli, J.P., Sweeny,DeGrasse and Freedman, JJ.
Reargument granted and, upon reargument, the decision and order of this Court entered onJanuary 6, 2009 (58 AD3d 410 [2009]) recalled and vacated and a new decision and ordersubstituted therefor. Leave to appeal to the Court of Appeals denied. Reargument denied.