Opinion
April 13, 1998
Appeal from the Supreme Court, Kings County (Hutcherson, J.).
Ordered that the interlocutory judgment is reversed insofar as appealed from, on the law, with costs, and a new trial is granted on the issue of the proper apportionment of fault between the third-party plaintiff and the third-party defendant.
An owner who is found liable for a worker's damages under Labor Law § 240 (1) may, under certain circumstances, seek indemnification and/or contribution from the worker's employer ( see, Chapel v. Mitchell, 84 N.Y.2d 345; Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559; Freeman v. National Audubon Socy., 243 A.D.2d 608; McNair v. Morris Ave. Assocs., 203 A.D.2d 433; Young v. Casabonne Bros., 145 A.D.2d 244; cf., Workers' Compensation Law § 11). Where the owner bears some percentage of fault for the happening of the accident, indemnification is not available ( see, Winiavski v. Martin Paint Stores, 240 A.D.2d 565; Pazmino v. Woodside Dev. Co., 212 A.D.2d 520). However, the owner can still seek contribution from the worker's employer based on their comparative degrees of fault ( see, Guzman v. Haven Plaza Hous. Dev. Fund, supra, at 567-568; Young v. Casabonne Bros., supra). The fact that the worker may not sue the employer directly because of Workers' Compensation Law § 11 is not a bar to the action ( see, Russo v. Hilman, 146 A.D.2d 690).
Here, evidence was presented from which the jury could have determined that both the third-party plaintiff and the third-party defendant bore some responsibility for the happening of the accident. The trial court therefore erred when it refused to allow the apportionment of fault between them.
The appellant's remaining claims are unpreserved for appellate review.
Ritter, J.P., Thompson, Goldstein and McGinity, JJ., concur.