| Fritz v Sports Auth. |
| 2012 NY Slip Op 00329 [91 AD3d 712] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Brian Fritz, Respondent, v Sports Authority et al.,Defendants/Third-Party Plaintiffs-Appellants, C&G Developers, Inc., Defendant/SecondThird-Party Plaintiff-Appellant, NLS Company, Appellant, and Shannon Construction of LongIsland et al., Defendants/Third-Party Defendants-Respondents. Giaquinto Masonry, Inc.,Third-Party Defendant/Second Third-Party Defendant-Respondent. |
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Laurence A. Silverman, Huntington, N.Y., for plaintiff-respondent. Wade Clark Mulcahy, New York, N.Y. (Edward Lomena of counsel), fordefendant/third-party defendant-respondent Shannon Construction of Long Island. Mulholland, Minion, Duffy, Davey, McNiff & Beyrer, Williston Park, N.Y. (John A. Beyrerand Brian Davey of counsel), for defendant/third-party defendant-respondent Roland's Electric,Inc. Segal McCambridge Singer & Mahoney, Ltd., New York, N.Y. (Simon Lee, Christian H.Gannon, and Theodore M. Eder of counsel), for third-party defendant/ second third-partydefendant-respondent.
In an action to recover damages for personal injuries, the defendants third-party plaintiffs,Sports Authority and Sons Riverhead, LLC, the defendant second third-party plaintiff, C&GDevelopers, Inc., and the defendant NLS Company appeal, as limited by their brief, from somuch of an order of the Supreme Court, Suffolk County (Whelan, J.), dated September 8, 2010,as denied that branch of their motion which was for summary judgment dismissing so much ofthe plaintiff's cause of action pursuant to Labor Law § 241 (6) insofar as asserted againstthem as was predicated upon alleged violations of 12 NYCRR 23-1.30 and 23-9.8 (e), denied thatbranch of their motion which was for summary judgment on the third-party cause of action ofSports Authority and Sons Riverhead, LLC, for contractual indemnification against the defendantthird-party defendant Roland's Electric, Inc., and the second third-party cause of action of C&GDevelopers, Inc., against the third-party defendant/second third-party defendant, GiaquintoMasonry, Inc., for contractual indemnification and denied that branch of their motion which wasfor summary judgment on the third-party cause of action of Sports Authority and SonsRiverhead, LLC, for common law [*2]indemnification against thedefendants third-party defendants, Shannon Construction of Long Island and Roland's Electric,Inc.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
The Supreme Court properly denied that branch of the motion of the defendants third-partyplaintiffs, Sports Authority and Sons Riverhead, LLC, the defendant second third-party plaintiff,C&G Developers, Inc., and the defendant NLS Company (hereinafter collectively the appellants)which was for summary judgment dismissing so much of the plaintiff's cause of action pursuantto Labor Law § 241 (6) insofar as asserted against them as was predicated upon allegedviolations of 12 NYCRR 23-1.30 and 23-9.8 (e). The appellants failed to make a prima facieshowing that the lighting at the job site sufficiently complied with the requirements of 12NYCRR 23-1.30 or that the operating surface at the job site sufficiently complied with therequirements of 12 NYCRR 23-9.8 (e). Since the appellants failed to establish their entitlementto judgment as a matter of law, their motion for summary judgment was properly denied to theextent the plaintiff's Labor Law § 241 (6) cause of action was predicated upon violations ofthese Industrial Code provisions (see Lucas v KD Dev. Constr. Corp., 300 AD2d 634,635 [2002]; Sorisi v Nineteen N.Y. Props., 264 AD2d 835 [1999]). Since the appellantsfailed to meet their prima facie burden, we need not review the sufficiency of the plaintiff'sopposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
The Supreme Court properly denied that branch of the appellants' motion which was forsummary judgment on the third-party cause of action by Sports Authority and Sons Riverhead,LLC (hereinafter together Sports), against the third-party defendant Roland's Electric, Inc.(hereinafter Roland's), for contractual indemnification and on the second third-party cause ofaction asserted by C&G Developer's, Inc., against the third-party defendant/second third-partydefendant-respondent Giaquinto Masonry, Inc., for contractual indemnification, as there aretriable issues of fact as to whose negligence, if anyone's, caused the plaintiff's accident (see Erickson v Cross Ready Mix, Inc.,75 AD3d 519, 524 [2010]; Georgev Marshalls of MA, Inc., 61 AD3d 925, 930 [2009]; Chun v Ecco III Enters.,268 AD2d 454, 454-455 [2000]). Under these circumstances, it is premature to reach the issue ofcontractual indemnification (see Erickson v Cross Ready Mix, Inc., 75 AD3d at 524;George v Marshalls of MA, Inc., 61 AD3d at 930; Chun v Ecco III Enters., 268AD2d at 454-455).
Similarly, the Supreme Court properly denied that branch of the appellants' motion whichwas for summary judgment on Sports's third-party cause of action against Shannon Constructionof Long Island and Roland's for common law indemnification, as the appellants failed todemonstrate, as a matter of law, that Sports was not negligent. Since the appellants failed to meettheir prima facie burden, we need not review the sufficiency of the plaintiff's opposition papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Under thesecircumstances, it is also premature to reach the issue of common law indemnification (see e.g. Martinez v City of New York,73 AD3d 993, 999 [2010]). Angiolillo, J.P., Lott, Austin and Cohen, JJ., concur. [PriorCase History: 2010 NY Slip Op 32465(U).]