CAHILL v. Aquatic Recreational Management, Inc., Third-Party Defendant-Respondent.

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

Matthew CAHILL, Plaintiff-Respondent, v. WESTCHESTER TOWERS OWNERS CORP., Defendant Third-Party Plaintiff-Appellant; Aquatic Recreational Management, Inc., Third-Party Defendant-Respondent.

Decided: June 24, 2002

ANITA R. FLORIO, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER and SANDRA L. TOWNES, JJ. Fiedelman & McGaw, Jericho, N.Y. (Carol A. Moore of counsel), for defendant third-party plaintiff-appellant. Hammill, O'Brien, Croutier, Dempsey & Pender, P.C., Mineola, N.Y. (Michael J. Pender and Gregory H. Hammill of counsel), for plaintiff-respondent. James P. O'Connor, Hempstead, N.Y. (Furey & Furey, P.C. [Susan Weihs Darlington] 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, Nassau County (Bucaria, J.), dated August 2, 2001, as (1) granted the motion of the third-party defendant for summary judgment dismissing the second and fourth causes of action in the third-party complaint for contractual indemnification and to recover damages for breach of contract, (2) granted the plaintiff's cross motion for partial summary judgment on the issue of liability on the Labor Law § 240(1) claim and denied that branch of the cross motion of the defendant third-party plaintiff which was for summary judgment dismissing the Labor Law § 240(1) claim, and (3), in effect, denied that branch of the cross motion which was for summary judgment dismissing the common-law negligence claim.

ORDERED that the order is modified, on the law, by (1) deleting the provision thereof granting the motion for summary judgment dismissing the second and fourth causes of action in the third-party complaint for contractual indemnification and to recover damages for breach of contract and substituting therefor a provision denying that motion, (2) deleting the provision thereof granting the plaintiff's cross motion for partial summary judgment on the issue of liability on the Labor Law § 240(1) claim and substituting therefor a provision denying the plaintiff's cross motion, and (3) deleting the provision thereof, in effect, denying that branch of the cross motion which was for summary judgment dismissing the plaintiff's common-law negligence cause of action and substituting therefor a provision granting that branch of the cross motion;  as so modified, the order is affirmed insofar as appealed from, with costs to the appellant.

On May 12, 1997, the plaintiff, an employee of Aquatic Recreational Management, Inc. (hereinafter Aquatic), was injured when the diving board of a pool he had been painting collapsed, causing him to fall into the pool, on premises owned by the defendant Westchester Towers Owners Corp. (hereinafter WTO).   WTO and Aquatic had previously entered into a contract in which Aquatic agreed to indemnify WTO for losses incurred “as a result of any breach of this agreement, or negligence” by Aquatic, and to “provide liability insurance and property damage insurance.”   Painting was excluded from the contract, which Aquatic performed under a separate agreement.

The plaintiff commenced this action against WTO alleging, among other things, common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).   WTO commenced a third-party action against Aquatic seeking contractual indemnification and to recover damages for breach of an agreement to procure liability insurance.

 The Supreme Court erred in granting partial summary judgment to the plaintiff on the issue of liability on his Labor Law § 240(1) claim.   Although painting a pool is work covered under Labor Law § 240(1) (see Rivers v. Sauter, 26 N.Y.2d 260, 309 N.Y.S.2d 897, 258 N.E.2d 191), a triable issue of fact exists as to whether the plaintiff was engaged in an elevation-related risk contemplated by Labor Law § 240(1) (see Bellantoni v. I.C.E. Constr. Corp., 271 A.D.2d 560, 706 N.Y.S.2d 146;  Rossi v. Mount Vernon Hosp., 265 A.D.2d 542, 697 N.Y.S.2d 164;  Masullo v. City of New York, 253 A.D.2d 541, 677 N.Y.S.2d 162).   The evidence in the record presents a question of fact as to whether it was necessary for the plaintiff to mount the diving board in order to complete his work (see Rossi v. Mount Vernon Hosp., supra at 543, 697 N.Y.S.2d 164).

The Supreme Court should have granted that branch of WTO's cross motion which was to dismiss the plaintiff's common-law negligence claim (see Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110;  Kanarvogel v. Tops Appliance City, 271 A.D.2d 409, 705 N.Y.S.2d 644;  Sprague v. Peckham Materials Corp., 240 A.D.2d 392, 658 N.Y.S.2d 97).

The Supreme Court also erred in granting Aquatic's motion for summary judgment dismissing WTO's second and fourth causes of action for contractual indemnification and to recover damages for breach of contract (see Inchaustegui v. 666 5th Ave. Ltd. Partnership, 96 N.Y.2d 111, 725 N.Y.S.2d 627, 749 N.E.2d 196;  Marin v. Roosevelt Is. Assocs., 282 A.D.2d 719, 724 N.Y.S.2d 329).

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