BRUMMER v. Town of Tonawanda, Defendant-Respondent. (2005)

Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when he fell approximately 21 feet to the ground while working on new housing construction.   Supreme Court properly granted that part of plaintiff's motion for partial summary judgment on the Labor Law § 240(1) cause of action against defendant-third-party plaintiff New Opportunities Community Housing Development Corporation (New Opportunities).   In support of his motion, plaintiff established that he was not provided with an adequate safety device to nail fascia board to the rafters and that the failure to provide any safety devices was a contributing cause of his fall (see Ewing v. ADF Constr. Corp., 16 A.D.3d 1085, 1086, 793 N.Y.S.2d 306;   Morin v. Machnick Bldrs., 4 A.D.3d 668, 670, 772 N.Y.S.2d 388;  see generally Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287, 771 N.Y.S.2d 484, 803 N.E.2d 757).   In opposition to the motion, New Opportunities and third-party defendant, Wendel B. Anderson Construction Co. (Anderson), failed to raise a triable issue “that there was no statutory violation and that plaintiff's own acts or omissions were the sole cause of the accident” (Blake, 1 N.Y.3d at 289 n. 8, 771 N.Y.S.2d 484, 803 N.E.2d 757).   We agree with Anderson that its notice of appeal was sufficient to give notice that it was appealing from the entire order, including that part of the order granting the motion of defendant-third-party plaintiff Town of Tonawanda (Town) for summary judgment seeking a defense and indemnification from Anderson on the ground of contractual indemnification (see CPLR 5515[1] ).   We agree with the Town, however, that Anderson raises no relevant contention regarding the issue of contractual indemnification.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: