URBANO v. PAVARINI CONSTRUCTION CO INC

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

Jacinto URBANO, Plaintiff-Respondent, v. PAVARINI CONSTRUCTION CO., INC., Defendant-Appellant,

Madison 45 LLC, Defendant-Respondent. Pavarini Construction Co., Inc., Third-Party Plaintiff-Appellant, v. General Industrial Services Corp., Third-Party Defendant-Respondent. [And Another Action].

Decided: March 31, 2005

BUCKLEY, P.J., TOM, MARLOW, GONZALEZ, CATTERSON, JJ. Barry, McTiernan & Moore, New York (Anthony J. McNulty of counsel), for appellant. Skip Alan LeBlang, New York, for Jacinto Urbano, respondent. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York (Eugene T. Boulé of counsel), for Madison 45 LLC, respondent. Abrams, Gorelick, Friedman & Jacobson, P.C., New York (Marisa Carpentiere of counsel), for General Industrial Services Corp., respondent.

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered June 24, 2004, which, to the extent appealed from, granted plaintiff's motion for summary judgment as to liability upon his Labor Law § 240(1) claim, denied Pavarini's cross motion seeking summary judgment upon its third-party claim for contractual indemnification as against plaintiff's employer General Industrial Services Corp. (GIS), unanimously affirmed, with costs.

 The evidence demonstrated without contradiction that plaintiff, while engaged in demolition work at a construction site, fell some 30 feet and sustained injuries when the defectively constructed outrigger scaffold upon which he was stationed gave way and his improperly secured lifeline failed.   Liability under Labor Law § 240(1) was thus established against defendant building owner Madison and defendant general contractor Pavarini (see Desouter v. HRH Constr. Corp., 216 A.D.2d 249, 628 N.Y.S.2d 691 [1995];  and see Alzate v. Trustees of Masonic Hall Asylum Fund, 303 A.D.2d 229, 757 N.Y.S.2d 17 [2003] ).   Pavarini's cross motion seeking contractual indemnification from plaintiff's employer GIS was properly denied since the record discloses the existence of factual issues as to whether Pavarini was in some measure responsible for the defectively constructed scaffolding (see Correia v. Professional Data Mgt., 259 A.D.2d 60, 64, 693 N.Y.S.2d 596 [1999] ).

We have considered appellant's remaining contentions and find them unavailing.