| Dean v City of Utica |
| 2010 NY Slip Op 06042 [75 AD3d 1130] |
| July 9, 2010 |
| Appellate Division, Fourth Department |
| Scott F. Dean, Jr., Appellant, v City of Utica, Respondent/ThirdParty Plaintiff-Appellant-Respondent. Beaton Industries, Inc., Third-PartyDefendant-Respondent-Appellant. |
—[*1] Linda Sullivan Fatata, Corporation Counsel, Utica (John P. Orilio of counsel), fordefendant-respondent/third-party plaintiff-appellant-respondent. Costello, Cooney & Fearon, PLLC, Syracuse (Donald S. DiBenedetto of counsel), forthird-party defendant-respondent-appellant.
Appeals and cross appeal from an order of the Supreme Court, Oneida County (David A.Murad, J.), entered April 28, 2009 in a personal injury action. The order, inter alia, denied themotion of plaintiff for partial summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying those parts of the motions of defendant/third-party plaintiff and third-party defendant forsummary judgment dismissing the Labor Law § 240 (1) claim and reinstating that claim,and by granting that part of the motion of third-party defendant for summary judgmentdismissing the common-law indemnification claim and dismissing that claim and as modified theorder is affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he sustained while working on a scissor lift. Plaintiff was replacingbearing brackets on a large garage door and was injured when the garage door opened and struckthe scissor lift, causing it to fall over. Plaintiff thereafter moved for partial summary judgment onliability under Labor Law § 240 (1), and defendant/third-party plaintiff (hereafter, City)moved, inter alia, for summary judgment dismissing the Labor Law claims and for summaryjudgment on its claim for indemnification from third-party defendant, Beaton Industries, Inc.(Beaton). Beaton moved for summary judgment dismissing plaintiff's Labor Law claims and theCity's third-party complaint. Supreme Court, inter alia, denied plaintiff's motion and grantedthose parts of the motions of the City and Beaton for summary judgment dismissing the LaborLaw claims. Plaintiff raises no issues on appeal with respect to Labor Law § 241 (6) andthus is deemed to have abandoned any issues with respect thereto (see Ciesinski v Town ofAurora, 202 AD2d 984 [1994]). The court also denied that part of the motion of Beaton forsummary judgment dismissing the third-party complaint.
We conclude that the court erred in granting those parts of the motions of the City andBeaton for summary judgment dismissing the Labor Law § 240 (1) claim. We thereforemodify the order accordingly. The contention of the City that it established as a matter of lawthat the scissor lift provided to plaintiff was an adequate safety device lacks merit. The mere factthat the scissor lift tipped over upon being struck by the garage door is sufficient to establish as amatter of law that the scissor lift was not so "placed . . . as to give properprotection" to plaintiff (id.; seeWard v Cedar Key Assoc., L.P., 13 AD3d 1098 [2004]). We reject the contention of theCity and Beaton that the actions of plaintiff were the sole proximate cause of the accident(see Ward, 13 AD3d 1098 [2004]). Even assuming, arguendo, that plaintiff should haveensured that the garage door was properly locked out or tagged out prior to beginning work, weconclude that his failure to do so raises, at most, an issue of comparative negligence, which is not"a defense [ ]available under" section 240 (1) (Gizowski v State of New York, 66 AD3d 1348, 1349 [2009]).Thus, we conclude that the City and Beaton failed to meet their initial burden of establishingtheir entitlement to judgment as a matter of law with respect to Labor Law § 240 (1) andthat the court therefore erred in granting their motions insofar as they sought dismissal of thatclaim. We do not address the propriety of the court's denial of the motion by plaintiff for partialsummary judgment under section 240 (1) inasmuch as plaintiff did not take an appeal from thatpart of the order denying his motion.
We reject the further contention of the City and Beaton that Labor Law § 240 (1) isinapplicable because plaintiff was performing only "routine maintenance" rather than "repair"work on the garage doors. The doors had been installed only weeks before, and the new bearingbrackets were required because the previously installed bearing brackets were wearing downprematurely. Such premature deterioration of the brackets cannot be deemed "normal wear andtear" such that replacing the brackets would constitute routine maintenance (Buckmann v State of New York, 64AD3d 1137, 1139 [2009]).
With respect to that part of the motion of Beaton for summary judgment dismissing thethird-party complaint to the extent that it seeks common-law indemnification, we conclude thatthe court erred in denying that part of the motion. We therefore further modify the orderaccordingly. It is undisputed that plaintiff's injuries were not "grave" and thus the City's claim forcommon-law indemnification is barred by Workers' Compensation Law § 11. We agreewith the court, however, that there are issues of fact concerning the City's claim for contractualindemnification, and the court therefore properly denied that part of Beaton's motion forsummary judgment dismissing that claim. Present—Scudder, P.J., Peradotto, Lindley,Green and Gorski, JJ.