SACCHETTI v. VASILE CONSTRUCTION CORP (1998)

Plaintiff commenced the instant action to recover for injuries he allegedly sustained during the construction of a senior citizen housing project.   Defendant Vasile Construction Corp. (Vasile), the general contractor, moved for summary judgment against, inter alia, plaintiff dismissing the complaint, and plaintiff cross-moved for partial summary judgment on, inter alia, Vasile's liability pursuant to Labor Law § 241(6).   Supreme Court denied the motion and granted the cross motion.

 On appeal, Vasile contends that the court erred in determining that it is liable to plaintiff pursuant to Labor Law § 241(6) irrespective of the existence of factual issues with regard to negligence and comparative negligence.   We agree.   The violation of specific provisions of the Industrial Code, even if proven, “does not establish negligence as a matter of law but is ‘merely some evidence to be considered on the question of a defendant's negligence’ ” (Schmeer v. County of Monroe, 175 A.D.2d 633, 633-634, 572 N.Y.S.2d 568, quoting Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 522, 493 N.Y.S.2d 102, 482 N.E.2d 898, rearg. denied 65 N.Y.2d 1054, 494 N.Y.S.2d 1033, 484 N.E.2d 1055;  see, Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 349, 670 N.Y.S.2d 816, 693 N.E.2d 1068;  Irwin v. St. Joseph's Intercommunity Hosp., 236 A.D.2d 123, 131, 665 N.Y.S.2d 773).  Further, Vasile has raised comparative negligence as a defense, and factual issues remain with respect to that defense (see, Irwin v St. Joseph's Intercommunity Hosp., supra, at 132, 665 N.Y.S.2d 773;  Drago v. New York City Tr. Auth., 227 A.D.2d 372, 373, 642 N.Y.S.2d 83;  cf., Rodriguez v. City of New York, 232 A.D.2d 621, 648 N.Y.S.2d 989;  Mendoza v. Cornwall Hill Estates, 199 A.D.2d 368, 369, 605 N.Y.S.2d 308).   We therefore modify the order by denying that part of plaintiff's cross motion seeking partial summary judgment on Vasile's liability pursuant to Labor Law § 241(6).

The court properly denied that part of the cross motion of plaintiff's employer, third- and fourth-party defendant Tambe Electric, Inc. (Tambe), for summary judgment dismissing the contribution and common-law indemnification claims of Vasile and defendant-fourth-party plaintiff against it.   Tambe failed to meet its initial burden of establishing its entitlement to judgment as a matter of law (see, CPLR 3212[b];  Malecki v. Wal-Mart Stores, 222 A.D.2d 1010, 635 N.Y.S.2d 888;  Gillmore v. Duke/Fluor Daniel, 221 A.D.2d 938, 940, 634 N.Y.S.2d 588;  Stimson v. Lapp Insulator Co., 186 A.D.2d 1052, 1053, 588 N.Y.S.2d 494).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: