JOHN KARCZ JR AND JENNIFER KARCZ PLAINTIFFS RESPONDENTS v. KLEWIN BUILDING COMPANY INC ET AL DEFENDANTS AND REN EQUIPMENT RENTAL INC DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

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

Memorandum:  Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by John W. Karcz, Jr. (plaintiff) when his right arm was struck by a ceiling truss that he was attempting to lift up to a coworker standing on the aerial platform of a scissor lift.   The scissor lift was owned by defendant-third-party plaintiff, R.B. U'Ren Equipment Rentals, Inc. (defendant), an equipment rental company, and leased to third-party defendant, Mader Construction Company (Mader), pursuant to a written agreement.   Defendant commenced a third-party action against Mader seeking, inter alia, contractual indemnification.   Defendant moved for summary judgment dismissing the complaint and the cross claim against it and for summary judgment on the contractual indemnification cause of action.   We conclude that Supreme Court properly denied that part of the motion with respect to the failure to warn claim against defendant because a triable issue of fact exists with respect thereto (see generally Liriano v. Hobart Corp., 92 N.Y.2d 232, 243;  Johnson v. Delta Intl. Mach. Corp., 60 AD3d 1307, 1309).   We further conclude that the court properly denied that part of the motion with respect to the contractual indemnification cause of action because triable issues of fact exist concerning whether defendant was negligent in its failure to provide adequate warnings (see generally Giglio v St. Joseph Intercommunity Hosp., 309 A.D.2d 1266, 1268, amended 2 AD3d 1485).

Patricia L. Morgan

Clerk of the Court