KNAUER v. Francis W. King Petroleum Products, Inc., Defendants-Respondents,

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Supreme Court, Appellate Division, Fourth Department, New York.

Thomas KNAUER, Plaintiff-Respondent-Appellant, v. Diane L. ANDERSON, as Executrix of the Estate of William F. Anderson, Sr., Deceased, Francis W. King Petroleum Products, Inc., Defendants-Respondents,

B.T.S. Services, Inc., Defendant-Appellant-Respondent. Diane L. Anderson, as Executrix of the Estate of William F. Anderson, Sr., Deceased, et al., Third-Party Plaintiffs, B.T.S. Services, Inc., Third-Party Plaintiff-Appellant, v. Ronald A. Knauer, Jr., Doing Business as Knauer Electric, Third-Party Defendant-Respondent.

Decided: November 15, 2002

Present:  GREEN, J.P., WISNER, SCUDDER, BURNS, and LAWTON, JJ. Gibson, McAskill & Crosby, LLP, Buffalo (Paulette E. Ross of Counsel), for Defendant-Appellant-Respondent and Third-Party Plaintiff-Appellant. Connors & Vilardo, LLP, Buffalo (Randall D. White of Counsel), for Plaintiff-Respondent-Appellant. Feldman, Kieffer & Herman, LLP, Buffalo (Marni Bogart of Counsel), for Defendant-Respondent Francis W. King Petroleum Products, Inc.

Plaintiff commenced this action seeking damages for injuries that he sustained when he fell from a stepladder positioned on top of a van while performing electrical work in a metal pole barn.   The barn was being constructed on land owned by William F. Anderson, Sr. (decedent) for use by two companies that he owned, defendants B.T.S. Services, Inc. (BTS) and Francis W. King Petroleum Products, Inc. (King Petroleum).   BTS had hired third-party defendant, Ronald A. Knauer, Jr., doing business as Knauer Electric (Knauer Electric), plaintiff's employer, to install electrical wiring and lighting fixtures in the barn.

 Supreme Court properly granted plaintiff's motion for partial summary judgment on liability under Labor Law § 240(1) against defendants Diane L. Anderson, as executrix of decedent's estate (Anderson), and BTS. Plaintiff met his initial burden of establishing that Anderson and BTS failed to furnish him with appropriate safety devices within the meaning of the statute (see generally § 240[1] ).   Plaintiff further established that the violation was a proximate cause of his injury (see Felker v. Corning Inc., 90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 682 N.E.2d 950;  Livecchi v. Eastman Kodak Co., 258 A.D.2d 916, 685 N.Y.S.2d 515;  cf.  Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 269, 727 N.Y.S.2d 37, 750 N.E.2d 1085;  Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 959-960, 672 N.Y.S.2d 840, 695 N.E.2d 709, rearg. denied 92 N.Y.2d 875, 677 N.Y.S.2d 777, 700 N.E.2d 317) and that his own actions were not the sole proximate cause of his injury (cf.  Weininger, 91 N.Y.2d at 960).   Anderson and BTS failed to raise an issue of fact to rebutplaintiff's showing.   Contrary to the contention of BTS, the issue whether plaintiff was an employee or an independent contractor of Knauer Electric does not preclude the award of partial summary judgment.   Even assuming, arguendo, that plaintiff was an independent contractor, we conclude that he was “employed” within the meaning of Labor Law § 240(1) (see Haimes v. New York Tel. Co., 46 N.Y.2d 132, 137, 412 N.Y.S.2d 863, 385 N.E.2d 601;   DiVincenzo v. Tripart Dev., 272 A.D.2d 904, 905, 709 N.Y.S.2d 271;  Nowak v. Kiefer, 256 A.D.2d 1129, 1130, 685 N.Y.S.2d 151, lv. denied in part and dismissed in part 93 N.Y.2d 887, 689 N.Y.S.2d 428, 711 N.E.2d 642, rearg. dismissed 93 N.Y.2d 1000, 695 N.Y.S.2d 746, 717 N.E.2d 1083).

 Contrary to plaintiff's contention, the court also properly granted the cross motion of King Petroleum dismissing the amended complaint against it.   King Petroleum submitted evidence establishing that it was not an “owner” or “contractor” within the meaning of Labor Law § 240(1) (see Clute v. Ellis Hosp., 184 A.D.2d 942, 944, 585 N.Y.S.2d 140;  Nowak v. Smith & Mahoney, 110 A.D.2d 288, 290, 494 N.Y.S.2d 449;  cf. Bohrer v. Pyramid Cos., 233 A.D.2d 841, 841-842, 649 N.Y.S.2d 893), and plaintiff failed to raise an issue of fact.

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

MEMORANDUM: