| Tama v Gargiulo Bros., Inc. |
| 2009 NY Slip Op 03506 [61 AD3d 958] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Stanislaw Tama, Respondent-Appellant, and KatarzynaRyczowska, Respondent, v Gargiulo Bros., Inc., Defendant and Third-PartyPlaintiff-Respondent-Appellant, and Our Lady of Refuge Roman Catholic Church,Appellant-Respondent. Sako Group, Ltd., Third-PartyDefendant-Respondent-Appellant. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), fordefendant third-party plaintiff-respondent-appellant. Edelman & Edelman, P.C., New York, N.Y. (David M. Schuller of counsel), forplaintiff-respondent-appellant. Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola, N.Y. (Carlie Fitapelli and Carmen A.Nicolau of counsel), for third-party defendant-respondent-appellant. John C. Dearie, New York, N.Y. (Michael Daniel Sharp of counsel), forplaintiff-respondent.
In a consolidated action to recover damages for personal injuries, etc., the defendant OurLady of Refuge Roman Catholic Church appeals, as limited by its brief, from stated portions ofan order of the Supreme Court, Kings County (Ruchelsman, J.), dated March 17, 2008, which,inter alia, denied those branches of its motion which were for summary judgment dismissing theLabor Law § 240 (1) and (2) [*2]causes of action insofar asasserted against it and on its cross claim for common-law indemnification asserted against thedefendant and third-party plaintiff, Gargiulo Bros., Inc., and granted those branches of theplaintiffs' cross motion which were for summary judgment on the issue of liability on the LaborLaw § 240 (1) and (2) causes of action insofar as asserted against it, the defendant andthird-party plaintiff, Gargiulo Bros., Inc., separately appeals, as limited by its brief, from somuch of the same order as denied those branches of its motion which were for summaryjudgment dismissing the Labor Law § 240 (1) and (2) causes of action insofar as assertedagainst it, and granted those branches of the plaintiffs' cross motion which were for summaryjudgment on the issue of liability on the Labor Law § 240 (1) and (2) causes of actioninsofar as asserted against it, the third-party defendant cross-appeals, as limited by its brief, fromso much of the same order as granted those branches of the plaintiffs' cross motion which werefor summary judgment on the issue of liability on the Labor Law § 240 (1) and (2) causesof action, denied its separate motion for summary judgment dismissing the third-party complaintand all cross claims insofar as asserted against it, and granted that branch of the cross motion ofthe defendant and third-party plaintiff, Gargiulo Bros., Inc., which was for summary judgmenton the third-party claims for contractual and common-law indemnification, and the plaintiffStanislaw Tama separately cross-appeals, as limited by his brief, from stated portions of thesame order.
Ordered that the cross appeal by the plaintiff Stanislaw Tama is dismissed as abandoned; andit is further,
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the cross motion of the defendant and third-party plaintiff, Gargiulo Bros., Inc., whichwas for summary judgment on its third-party claims for contractual and common-lawindemnification and substituting therefor a provision denying that branch of that cross motion; asso modified, the order is affirmed insofar as appealed and cross-appealed from by the third-partydefendant; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs, payable by the defendant andthird-party plaintiff, Gargiulo Bros., Inc., the defendant Our Lady of Refuge Roman CatholicChurch, and the third-party defendant, appearing separately and filing separate briefs, and onebill of costs is awarded to the defendant and third-party plaintiff, Gargiulo Bros., Inc., payable bythe defendant Our Lady of Refuge Roman Catholic Church and the third-party defendant.
The plaintiff Stanislaw Tama and the decedent, Piotr Cegiel, fell from a hanging scaffoldwhile performing window repair work for their employer, the third-party defendant Sako Group,Ltd. (hereinafter Sako), at a building owned by the Roman Catholic Church of Our Lady ofRefuge, in the Borough of Brooklyn, in the City of New York, sued herein as Our Lady ofRefuge Roman Catholic Church (hereinafter the Church). The Church had hired the defendantand third-party plaintiff, Gargiulo Bros., Inc. (hereinafter Gargiulo), to perform the work andGargiulo, in turn, subcontracted the job to Sako. Following the accident, Tama and the plaintiffKatarzyna Ryczowska, as administratrix of the decedent's estate, commenced separate actionsagainst Gargiulo and the Church. Gargiulo then commenced a third-party action against Sako.The actions were later consolidated.
Subsequently, the Supreme Court, inter alia, granted the plaintiffs' cross motion for summaryjudgment on the issue of liability on the Labor Law § 240 (1) and (2) causes of action. Thecourt also granted that branch of Gargiulo's cross motion which was for summary judgment onits third-party claims for contractual and common-law indemnification against Sako, and deniedthat branch of the Church's [*3]motion which was for summaryjudgment on its cross claim for common-law indemnification against Gargiulo. We modify.
To impose liability pursuant to Labor Law § 240 (1), there must be a violation of thestatute and that violation must be a proximate cause of the plaintiff's injuries (see Blake v Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280, 287 [2003]; Leniar v Metropolitan Tr. Auth., 37 AD3d 425, 426 [2007]). Toimpose liability pursuant to Labor Law § 240 (2), there must also be proof that the subjectscaffolding was more than 20 feet above the ground and lacked properly secured safety rails, andthat the failure to provide such protection was a proximate cause of plaintiff's injuries (seeEmmi v Emmi, 186 AD2d 1025 [1992]). Here, the plaintiffs established their prima facieentitlement to judgment as a matter of law on the issue of liability on the Labor Law § 240(1) and (2) causes of action by showing that Tama and the decedent were not provided with theproper protection required under these statutory provisions, that the scaffold on which Tama andthe decedent worked was more than 20 feet above the ground and lacked properly-secured safetyrails, and that the failure to provide such protection was a proximate cause of their injuries (see McCarthy v Turner Constr., Inc.,52 AD3d 333, 333-334 [2008]; Miglionico v Bovis Lend Lease, Inc., 47 AD3d 561, 565 [2008];Emmi v Emmi, 186 AD2d 1025 [1992]; Brown v Sagamore Hotel, 184 AD2d47, 51 [1992]; Braun v Dormitory Auth. of State of N.Y., 118 AD2d 614 [1986]). Inopposition, Gargiulo and the Church failed to raise a triable issue of fact as to whether theactions of Tama and the decedent were the sole proximate cause of the accident (see Moniuszko v Chatham Green, Inc.,24 AD3d 638, 638-639 [2005]; Aragon v 233 W. 21st St., 201 AD2d 353, 354[1994]). Accordingly, the Supreme Court properly granted the plaintiffs' motion for summaryjudgment on the issue of liability on the Labor Law § 240 (1) and (2) causes of action.
However, the Supreme Court erred in granting that branch of Gargiulo's cross motion whichwas for summary judgment on its third-party claims for contractual and common-lawindemnification against Sako. Gargiulo failed to establish its prima facie entitlement to judgmentas a matter of law since it failed to demonstrate that Sako exercised exclusive direction,supervision, and control over the erection of the scaffolding (see Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 684-685[2005]; see also Markey v C.F.M.M.Owners Corp., 51 AD3d 734, 736 [2008]).
The Supreme Court correctly denied the Church's motion for summary judgment on its crossclaim for common-law indemnification against Gargiulo since an award of summary judgmenton a claim for common-law indemnification is appropriate only where there are no triable issuesof fact concerning the degree of fault attributable to the parties (see Coque v Wildflower Estates Devs.,Inc., 31 AD3d 484, 489 [2006]; La Lima v Epstein, 143 AD2d 886, 888[1988]). Here, the Supreme Court correctly concluded that issues of fact remained with respectto the negligence of Gargiulo and the Church.
Tama's cross appeal must be dismissed as abandoned (see Sirma v Beach, 59 AD3d 611, 614 [2009]; Bibas v Bibas, 58 AD3d 586[2009]), as he does not seek reversal of any portion of the order in his brief. Spolzino, J.P.,Santucci, Leventhal and Chambers, JJ., concur. [See 19 Misc 3d 1141(A), 2008 NY SlipOp 51134(U).]