MENDEZ v. [And Other Actions]. (2005)

Order, Supreme Court, Bronx County (Gerald V. Esposito, J.), entered on or about March 1, 2004, which, to the extent appealed from, upon reargument, adhered to the court's prior order denying the cross motion of defendant Rockledge Scaffolding Corp. (Rockledge) for summary judgment dismissing the complaint and cross claims as against it, unanimously modified, on the law, to grant the cross motion insofar as to dismiss the Labor Law § 241(6) claim as against Rockledge, as abandoned at argument, and otherwise affirmed, without costs.

 The court properly denied that part of the cross motion seeking dismissal of plaintiff's Labor Law § 200 and common-law negligence claims.   There are issues of fact as to whether the accident was caused in whole or part by Rockledge's failure properly to construct the scaffolding from which plaintiff fell.   That Rockledge was not plaintiff's supervisor and did not supervise his work does not preclude a finding of liability against it on a common-law theory if it is found to have negligently installed the scaffolding (see Urbina v. 26 Court St. Assocs., LLC, 12 A.D.3d 225, 784 N.Y.S.2d 524 [2004];  Keohane v. Littlepark House Corp., 290 A.D.2d 382, 736 N.Y.S.2d 664 [2002];  Greco v. Archdiocese of New York, 268 A.D.2d 300, 301, 702 N.Y.S.2d 29 [2000] ).   Similarly, for the purposes of assigning liability under Labor Law § 200, the fact that Rockledge did not supervise plaintiff's work does not mandate summary judgment dismissing the claim where there are issues of fact as to whether the defective condition dated from the installation of the scaffolding (see Corbi v. Ave. Woodward Corp., 260 A.D.2d 255, 688 N.Y.S.2d 523 [1999];  Schiulaz v. Arnell Constr. Corp., 261 A.D.2d 247, 690 N.Y.S.2d 226 [1999] ).   Since there are material issues of fact as to whether negligence by Rockledge caused plaintiff's harm, Rockledge is not entitled to summary judgment dismissing the cross claim against it for common-law indemnification and contribution (see Correia v. Professional Data Mgt., Inc., 259 A.D.2d 60, 65, 693 N.Y.S.2d 596 [1999];  Sheehan v. Fordham Univ., 259 A.D.2d 328, 329, 687 N.Y.S.2d 22 [1999] ).

Plaintiff's Labor Law § 241(6) claim against Rockledge is dismissed as abandoned at argument.