CLEMENTE v. GROWING TUNNELING CORP

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

Vito CLEMENTE, et al., Plaintiffs-Appellants-Respondents, v. GROWING TUNNELING CORP., et al., Defendants-Respondents-Appellants,

Durnell Engineering Inc., etc., et al., Defendants. GROW, KIEWIT and CATAPANO, INC., etc., Third-Party Plaintiff-Appellant, v. CRAFTSMAN ELECTRICAL CO., et al., Third-Party Defendants-Respondents.

Decided: January 28, 1997

Before MURPHY, P.J., and SULLIVAN, ROSENBERGER, WILLIAMS and ANDRIAS, JJ. Martin Lassoff, for Plaintiffs-Appellants-Respondents. Michael Majewski, for Defendants-Respondents-Appellants and Third-Party Defendants-Respondents.

Order, Supreme Court, New York County (Norman Ryp, J.), entered on or about December 15, 1995, which, insofar as appealed from, denied plaintiffs' motion for summary judgment on its Labor Law § 240(1) cause of action against defendants, granted that part of defendant and third-party plaintiff's cross-motion which sought dismissal of that cause of action, and denied that part of defendant and third-party plaintiff's cross-motion for summary judgment on its indemnification cause of action against third-party defendants, unanimously modified, on the law, to deny the former part of the cross-motion and to reinstate plaintiff's Labor Law § 240(1) claim, and otherwise affirmed, without costs.

 Plaintiff's Labor Law § 240(1) claim is reinstated.   Unlike the facts of Smith v. Shell Oil Co., 85 N.Y.2d 1000, 1002, 630 N.Y.S.2d 962, 654 N.E.2d 1210, the instant plaintiff was not merely changing a light bulb, he was removing for repair a twenty-pound lighting fixture specifically installed on the property to facilitate a twenty-four-hour construction project, an activity within the scope of this statutory section.   Trial of this claim is appropriate because plaintiff was the only witness to the accident, and, in this situation, defendants should be granted the opportunity to subject plaintiff's allegation that the accident was caused by a defect in the bucket truck 1 to cross-examination and have his credibility determined by the trier of fact (Manna v. New York City Housing Authority, 215 A.D.2d 335, 336, 627 N.Y.S.2d 43).   Since similar factual issues exist as to whether defendant and third-party plaintiff was negligent in allowing the bucket truck in question to be used, summary judgment on its cause of action against third-party defendants for indemnification is presently premature (see, D'Amico v. Manufacturers Hanover Trust Co., 177 A.D.2d 441, 443, 576 N.Y.S.2d 536).

FOOTNOTES

1.   It should be noted that a bucket truck has been construed to be functionally equivalent to the other devices covered by this statutory section, Labor Law § 240(1) (see, Drew v. Correct Manufacturing Corp., 149 A.D.2d 893, 540 N.Y.S.2d 575).

MEMORANDUM DECISION.