LEWIS v. All Island Masonry & Concrete, Inc., et al., Defendant/Third–Party Defendant–Respondent–Appellant. (2022)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about December 28, 2020, which, to the extent appealed from, granted plaintiff's motion for summary judgment on his common-law negligence and Labor Law §§ 200 and 240(1) claims and denied the motion of defendants 96 Wythe Acquisition LLC (96 Wythe) and Dimyon Development Corp. (Dimyon) for summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 claims as against them, for contractual indemnification from defendant/third-party defendant All Island Masonry & Concrete, Inc.’s (All Island), and dismissing All Island's cross claims, unanimously modified, on the law, plaintiff's motion denied, 96 Wythe and Dimyon's motion granted to the extent of conditionally granting 96 Wythe and Dimyon's summary judgment on the contractual indemnification claim against All Island, and otherwise affirmed without costs.

The motion court should have denied plaintiff's motion for partial summary judgment as to liability under Labor Law § 240(1).  Plaintiff testified at his deposition that an unsecured metal beam on a barella cart fell and struck him after a coworker moved the cart.  All Island's project manager, however, testified that, in conversation after the accident, plaintiff had admitted to him that the metal beam slipped out of his hand.  These two versions of how the accident happened, each given by plaintiff, the sole witness to the incident, are inconsistent with each other and give rise to an issue of fact as to whether plaintiff's accident was caused by a failure of a safety device within the purview of section 240(1) (see Albino v. 221–223 W. 82 Owners Corp., 142 A.D.3d 799, 800–801, 37 N.Y.S.3d 113 [1st Dept. 2016];  Ellerbe v. Port Auth. of N.Y. & N.J., 91 A.D.3d 441, 442, 936 N.Y.S.2d 39 [1st Dept. 2012];  see also Rodriguez v. Margaret Tietz Ctr. for Nursing Care, Inc., 84 N.Y.2d 841, 616 N.Y.S.2d 900, 640 N.E.2d 1134 [1994] [Labor Law § 240(1) not implicated where beam fell out of worker's hands];  Outar v. City of New York, 286 A.D.2d 671, 730 N.Y.S.2d 138 [2d Dept. 2001], affd 5 N.Y.3d 731, 799 N.Y.S.2d 770, 832 N.E.2d 1186 [2005]).

The motion court should also have denied plaintiff's motion with respect to the common-law negligence and Labor Law § 200 claims based on the contradictory accounts of the accident.

Summary judgment on the contractual indemnification claim against All Island must be granted conditionally rather than unconditionally, in light of the pending issues of fact as to defendants’ negligence (see Aramburu v. Midtown West B, LLC, 126 A.D.3d 498, 500–501, 6 N.Y.S.3d 227 [1st Dept. 2015]).  Finally, dismissal of All Island's cross claims was properly denied.