SOTO v. << (2002)

Order, Supreme Court, Bronx County (Bertram Katz, J.), rendered October 12, 2001, which, in an action for personal injuries by an elevator repairman, insofar as appealed from, denied defendants building owners' motion for summary judgment dismissing the complaint, or for partial summary judgment on their third-party complaint against plaintiff's employer, unanimously affirmed, without costs.

Defendants' motion for summary judgment dismissing the complaint was properly denied, there being issues of fact as to whether plaintiff was injured by a falling beam, as he testified at deposition;  if so, whether the beam fell because the floor in the machine room was not reinforced in conformity with Administrative Code § 27-610(b) or was otherwise unsafe;  and, if so, whether defendants created or had notice of the unsafe floor (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Wagner v. Grinnell Hous. Dev. Fund Corp., 260 A.D.2d 265, 688 N.Y.S.2d 551).   These same issues of fact, which go to defendants' negligence in maintaining the machine room floor, also preclude summary judgment in favor of defendants on their claim for common-law indemnification against plaintiff's employer, where it does not appear that plaintiff's employer had assumed responsibility for maintenance of the machine room floor (cf.  Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 687-688, 555 N.Y.S.2d 669, 554 N.E.2d 1257;  Wagner v. Grinnell Hous. Dev. Corp., 297 A.D.2d 226, 746 N.Y.S.2d 156, 157).