MEJIA v. (and a third-party action). (2000)

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court Queens County (Lonschein, J.), dated January 5, 1999, as denied his motion for partial summary judgment on the issue of liability under Labor Law § 240(1), and the defendant African Methodist Episcopal Allen Church cross-appeals from so much of the same order as denied that branch of its cross motion which was for partial summary judgment against the defendant Arlen Contracting Corp. for common-law indemnification.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the cross motion which was for partial summary judgment against the defendant Arlen Contracting Corp. for common-law indemnification and substituting therefor a provision granting that branch of the cross motion;  as so modified, the order is affirmed, without costs or disbursements.

 Because the evidence establishes that the scaffold from which the plaintiff fell did not move, collapse, or otherwise fail to perform its function of supporting the plaintiff and his materials (see, Whalen v. Sciame Constr. Co., 198 A.D.2d 501, 502, 604 N.Y.S.2d 174;  Dennis v. Beltrone Constr. Co., 195 A.D.2d 688, 599 N.Y.S.2d 723;  Hartley v. Spartan Concrete, 172 A.D.2d 586, 568 N.Y.S.2d 415), the issue of whether the device provided proper protection within the meaning of Labor Law § 240(1) is a question of fact for the jury (see, e.g., Eckhoff v. Consolidated Edison Co. of N.Y., 214 A.D.2d 698, 625 N.Y.S.2d 604;  Romano v. Hotel Carlyle Owners Corp., 226 A.D.2d 441, 641 N.Y.S.2d 50).   Moreover, a plaintiff cannot prevail on a motion for summary judgment under Labor Law § 240(1) if there is any view of the evidence which would permit a finding that the defendant's violation of that provision might not have been a proximate cause of the plaintiff's accident (see, Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 524, 493 N.Y.S.2d 102, 482 N.E.2d 898;  Duda v. Rouse Constr. Corp., 32 N.Y.2d 405, 410, 345 N.Y.S.2d 524, 298 N.E.2d 667;  Zeitner v. Herbmax Sharon Assocs., 194 A.D.2d 414, 599 N.Y.S.2d 234;  Golaszewski v. Cadman Plaza N., 136 A.D.2d 596, 523 N.Y.S.2d 581).

 The defendant African Methodist Episcopal Allen Church (hereinafter the church), the owner of the property, established that it was entitled to common-law indemnification from the general contractor, Arlen Contracting Corp. (hereinafter Arlen), as the church did not supervise or control the injured plaintiff's work.   Arlen and the plaintiff's employer, Caruso Masonry Corporation, a subcontractor, had complete control over the plaintiff's work and the erection of the scaffolding (see, Gordon v. Tishman Constr. Corp, 264 A.D.2d 499, 694 N.Y.S.2d 719;  Brink v. Yeshiva University, 259 A.D.2d 265, 686 N.Y.S.2d 15;  Rice v. PCM Dev. Agency Co., 230 A.D.2d 898, 646 N.Y.S.2d 856;  Lopez v. 36-2nd J Corp., 211 A.D.2d 667, 622 N.Y.S.2d 288;  Pazmino v. Woodside Dev. Co., 212 A.D.2d 520, 622 N.Y.S.2d 299).

MEMORANDUM BY THE COURT.