ARGUETA v. S & B Professional Construction, a/k/a S & B Professional Builders, Inc., third-party defendant-respondent.

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

Elmer ARGUETA, plaintiff-respondent, v. POMONA PANORAMA ESTATES, LTD., defendant third-party plaintiff-appellant; S & B Professional Construction, a/k/a S & B Professional Builders, Inc., third-party defendant-respondent.

Decided: April 24, 2007

HOWARD MILLER, J.P., DAVID S. RITTER, JOSEPH COVELLO, and WILLIAM E. McCARTHY, JJ. Fishman & Callahan, P.C., Suffern, N.Y. (Mitchell B. Levine of counsel), for defendant third-party plaintiff-appellant. Ross Legan Rosenberg Zelen & Flaks, LLP, New York, N.Y. (Michael Flaks of counsel), for plaintiff-respondent. Fiedelman & McGaw, Jericho, N.Y. (Alan I. Lamer and Ross P. Masler of counsel), for third-party defendant-respondent.

In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Weiner, J.), dated March 7, 2006, as granted the plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) cause of action and denied that branch of its cross motion which was for summary judgment on the third-party claim for contractual 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 summary judgment on the third-party claim for contractual indemnification and substituting therefor a provision granting that branch of the cross motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

 On his motion, the plaintiff met his burden of demonstrating his entitlement to judgment as a matter of law on the issue of liability on his Labor Law § 240(1) cause of action by submitting evidence establishing that he fell while climbing an unsecured ladder that had been placed on uneven dirt, which suddenly slid to the right (see Boe v. Gammarati, 26 A.D.3d 351, 809 N.Y.S.2d 550;  Chlap v. 43rd St.-Second Ave. Corp., 18 A.D.3d 598, 795 N.Y.S.2d 617;  Peter v. Nisseli Realty Co., 300 A.D.2d 289, 289-290, 750 N.Y.S.2d 772;  Johnson v. Rapisarda, 262 A.D.2d 365, 691 N.Y.S.2d 130;  Kinsler v. Lu-Four Assoc., 215 A.D.2d 631, 632, 628 N.Y.S.2d 303;  Madden v. Trustees of Duryea Presbyt. Church, 210 A.D.2d 382, 620 N.Y.S.2d 424).   Since, in opposition, the defendant third-party plaintiff Pomona Panorama Estates, Ltd. (hereinafter Pomona), failed to raise a triable issue of fact as to whether the plaintiff's own actions were the sole proximate cause of his injuries, the Supreme Court correctly granted the plaintiff's motion for summary judgment on that cause of action (see Boe v. Gammarati, supra at 352, 809 N.Y.S.2d 550;  Chlap v. 43rd St.-Second Ave. Corp., supra at 598, 795 N.Y.S.2d 617;  Peter v. Nisseli Realty Co., supra at 290, 750 N.Y.S.2d 772).

 The contractual indemnification provision at issue requires the third-party defendant S & B Professional Construction, a/k/a S & B Professional Builders, Inc. (hereinafter S & B), to indemnify Pomona “[t]o the fullest extent permitted by law” for any “claims, damages, losses, and expenses ․ arising out of or resulting from performance of [the] subcontracted work” that S & B performed “to the extent caused in whole or part by” S & B. It is clear that Pomona was not actively negligent, that the plaintiff's injuries arose out of the performance of the subcontracted work, and that the plaintiff's damages were “caused” by S & B. Upon S & B's failure to raise a triable issue of fact in response to Pomona's establishment, prima facie, of its entitlement to judgment as a matter of law, the Supreme Court should have granted that branch of Pomona's cross motion which was for summary judgment on the third-party claim against S & B for contractual indemnification (see Tkach v. City of New York, 278 A.D.2d 227, 229, 717 N.Y.S.2d 290;  Pope v. Supreme-K.R.W. Constr. Corp., 261 A.D.2d 523, 525, 690 N.Y.S.2d 632).   Moreover, S & B's contention that Pomona's cross motion for summary judgment was premature is without merit (cf. CPLR 3212[f] ).

In light of our determination, Pomona's remaining contention is not properly before the court (see Katz v. Katz, 68 A.D.2d 536, 542-543, 418 N.Y.S.2d 99;  Kok Choy Yeen v. NWE Corp., 37 A.D.3d 547, 830 N.Y.S.2d 265), and, in any event, has been rendered academic (see Williams v. General Elec. Co., 8 A.D.3d 866, 868, 779 N.Y.S.2d 155;  Squires v. Marini Bldrs., 293 A.D.2d 808, 809, 739 N.Y.S.2d 777;  Covey v. Iroquois Gas Transmission Sys.,218 A.D.2d 197, 201, 637 N.Y.S.2d 992, aff'd. 89 N.Y.2d 952, 655 N.Y.S.2d 854, 678 N.E.2d 466).

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