GUARINO v. PLN (2005)

In an action to recover damages for personal injuries, PLN Construction, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Levine, J.), dated June 24, 2003, as granted the plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim insofar as asserted against it.

ORDERED that the ordered is affirmed insofar as appealed from, with one bill of costs.

 Contrary to the appellant's contention, the plaintiff properly commenced a direct action against it by the service of an amended complaint naming it as a defendant, after the service of the third-party complaint upon it and before it served a third-party answer (see CPLR 1009;  Micari v. Van Kesteren, 121 A.D.2d 524, 504 N.Y.S.2d 23;  Johnson v. Equitable Life Assur. Soc. of U.S., 22 A.D.2d 141, 254 N.Y.S.2d 261, affd. 18 N.Y.2d 933, 277 N.Y.S.2d 136, 223 N.E.2d 562;  see also Patrician Plastic Corp. v. Bernadel Realty Corp., 25 N.Y.2d 599, 607, 307 N.Y.S.2d 868, 256 N.E.2d 180).

 Moreover, since the issue of the appellant's liability to the plaintiff under the Labor Law was not fully litigated before the filing of the plaintiff's motion, the doctrine of law of the case doctrine did not apply (see People v. Evans, 94 N.Y.2d 499, 502, 706 N.Y.S.2d 678, 727 N.E.2d 1232;  Engel v. Eichler, 300 A.D.2d 622, 623, 753 N.Y.S.2d 109;  see also Gilligan v. Reers, 255 A.D.2d 486, 487, 680 N.Y.S.2d 621).   The Supreme Court properly granted the plaintiff summary judgment on the issue of liability under Labor Law § 240(1) against the appellant, which was a contractor within the meaning of the statute (see Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912;  Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Williams v. Dover Home Improvement, 276 A.D.2d 626, 714 N.Y.S.2d 318;  cf. Russin v. Picciano & Son, 54 N.Y.2d 311, 445 N.Y.S.2d 127, 429 N.E.2d 805).