BACZYK v. PARK 25TH ASSOCIATES (1999)

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered September 12, 1997, which, inter alia, granted defendants' motion for summary judgment insofar as it sought dismissal of plaintiff's Labor Law § 240(1) and 241(6) causes of action, but denied defendants' motion for summary judgment insofar as it sought dismissal of plaintiff's Labor Law § 200 and common-law claims;  denied that branch of defendant/third-party plaintiffs' summary judgment motion for a conditional judgment against the third-party defendant based on contractual and common law indemnity;  and denied plaintiff's cross motion for summary judgment upon his Labor Law § 240(1) and 241(6) claims, unanimously affirmed, without costs.

Because the record raises factual issues as to whether negligence by defendants caused plaintiff's accident, the motion court properly denied defendants' motion to dismiss plaintiff's Labor Law § 200 and common-law negligence claims.   The same issues also warranted the denial of defendants' motion for an award of conditional judgment against the third-party defendant on contractual and common-law indemnity theories (see, Smith v. Cassadaga Valley Cen. School Dist., 178 A.D.2d 955, 578 N.Y.S.2d 747;  see also, City of New York v. Consolidated Edison Co. of New York, 198 A.D.2d 31, 603 N.Y.S.2d 47, lv. denied 83 N.Y.2d 757, 615 N.Y.S.2d 874, 639 N.E.2d 415).

Also proper was the motion court's dismissal of plaintiff's Labor Law § 240(1) and 241(6) claims, since the injuries sustained by plaintiff did not result from either a gravity-related risk within the contemplation of Labor Law Section 240(1) or a code violation within the contemplation of Labor Law Section 241(6) (see, Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932;  Dias v. Stahl, 256 A.D.2d 235, 682 N.Y.S.2d 383).

MEMORANDUM DECISION.