| Hall v Smithtown Cent. School Dist. |
| 2011 NY Slip Op 01615 [82 AD3d 703] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Robert A. Hall et al., Respondents, v Smithtown CentralSchool District, Appellant, and Stalco Construction, Inc., Respondent, et al.,Defendant. |
—[*1] Kujawski & Dellicarpini, Deer Park, N.Y. (Shaun M. Malone of counsel), forplaintiffs-respondents. Maroney O'Connor, LLP, New York, N.Y. (Thomas Maroney and James P. O'Connor ofcounsel), for defendant-respondent.
In an action to recover damages for personal injuries, etc., the defendant Smithtown CentralSchool District appeals, as limited by its brief, from so much of an order of the Supreme Court,Suffolk County (Pines, J.), dated October 30, 2009, as denied that branch of its motion whichwas for summary judgment dismissing the plaintiffs' Labor Law § 240 (1) cause of actioninsofar as asserted against it, and granted the motion of the defendant Stalco Construction, Inc.,in effect, for summary judgment dismissing the complaint and the cross claim of the defendantSmithtown Central School District for contribution and indemnification insofar as assertedagainst it.
Ordered that the appeal from so much of the order as granted that branch of the motion of thedefendant Stalco Construction, Inc., which was, in effect, for summary judgment dismissing thecomplaint insofar as asserted against it is dismissed, as the appellant is not aggrieved thereby (see Mixon v TBV, Inc., 76 AD3d144 [2010]); and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
The defendant Smithtown Central School District (hereinafter SCSD) undertook aconstruction project to add several classrooms to one of its school buildings. SCSD contractedwith the defendant Stalco Construction, Inc. (hereinafter Stalco), to be a prime contractor forgeneral construction on the project. The plaintiff Robert A. Hall, an electrician employed byStalco, alleged that he was injured when he fell from a ladder while installing ceiling fixtures inone of SCSD's classrooms. Hall and his wife, suing derivatively (hereinafter together theplaintiffs), commenced [*2]this action against, among others,SCSD and Stalco (hereinafter the defendants). The defendants answered, asserted cross claims,and separately moved for summary judgment.
SCSD failed to establish its prima facie entitlement to judgment as a matter of law on thatbranch of its motion which was for summary judgment dismissing the plaintiffs' Labor Law§ 240 (1) cause of action, as there is a triable issue of fact relating to the proximate causeof the accident (see Robinson v EastMed. Ctr., LP, 6 NY3d 550, 552 [2006]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,290-291 [2003]; Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 618-619[2008]; Kozlowski v Grammercy HouseOwners Corp., 46 AD3d 756 [2007]; D'Angelo v Builders Group, 45 AD3d 522 [2007]; Florio v LLP Realty Corp., 38 AD3d829 [2007]). Therefore, the Supreme Court properly denied that branch of SCSD's motion.
Stalco made a prima facie showing of its entitlement to judgment as a matter of law byestablishing that it was a prime contractor and not responsible for the work allegedly giving riseto Hall's injury and hence entitled to summary judgment dismissing the plaintiffs' Labor Law§ 240 (1) cause of action insofar as asserted against it (see Nasuro v PI Assoc., LLC, 49 AD3d 829, 830 [2008]). Inopposition, SCSD failed to raise a triable issue of fact. Consequently, the Supreme Courtproperly granted that branch of Stalco's motion which was, in effect, for summary judgmentdismissing SCSD's cross claim for contribution and indemnification insofar as asserted against it.Mastro, J.P., Balkin, Leventhal and Miller, JJ., concur.