Opinion
No. CA 06-01891.
June 8, 2007.
Appeal and cross appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered June 22, 2006 in a Labor Law and common-law negligence action. The order, insofar as appealed and cross appealed from, denied that part of the cross motion of defendant and third-party plaintiff for summary judgment dismissing the Labor Law § 241 (6) cause of action insofar as it is based upon the alleged violation of 12 NYCRR 23-1.7 (f), denied the cross motion of defendant and third-party plaintiff for summary judgment on its contractual indemnification cause of action in the third-party complaint, and denied that part of third-party defendant's cross motion for summary judgment dismissing the contractual indemnification cause of action.
SMITH, SOVIK, KENDRICK SUGNET, P.C., SYRACUSE (KRISTEN M. BENSON OF COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT-RESPONDENT.
OSBORN, REED BURKE, LLP, ROCHESTER (THOMAS J. RZEPKA OF COUNSEL), FOR DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-RESPONDENT-APPELLANT.
ANTHONY F. ENDIEVERI, CAMILLUS, FOR PLAINTIFF-RESPONDENT.
Present — Scudder, P.J., Martoche, Smith, Centra and Peradotto, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when he fell after stepping on a bucket that was used as a step into a house under construction. Contrary to the contention of defendant-third-party plaintiff (defendant), Supreme Court properly denied that part of its cross motion for summary judgment seeking dismissal of the Labor Law § 241 (6) cause of action insofar as it is based upon the alleged violation of 12 NYCRR 23-1.7 (f). The remainder of the complaint was dismissed by the court "on consent," and the court in addition denied plaintiff's motion for partial summary judgment on liability on the Labor Law § 241 (6) cause of action on the ground that there is a triable issue of fact whether plaintiff was comparatively negligent. We agree with defendant's alternative contention that there also are triable issues of fact whether defendant violated 12 NYCRR 23-1.7 (f), which requires that "[s]tairways, ramps or runways shall be provided as the means of access to working levels above or below ground. . . ." Specifically, there are triable issues of fact whether defendant provided a stairway where plaintiff entered the house and whether there was an alternate means of access into the house ( see Seepersaud v City of New York, 38 AD3d 753, 755; Sponholz v Benderson Prop. Dev., 273 AD2d 791, 792).
We further conclude that the court properly denied that part of the cross motion of third-party defendant for summary judgment dismissing the contractual indemnification cause of action in the third-party complaint and properly denied defendant's cross motion for summary judgment on that cause of action. The record establishes that, although the indemnification agreement between defendant and third-party defendant is dated approximately one year before the accident, third-party defendant did not sign that agreement until after the date of the accident. We thus conclude on the record before us that there is a triable issue of fact whether the parties intended the agreement to apply as of the earlier date ( see generally Nephew v Klewin Bldg. Co., Inc., 21 AD3d 1419, 1421-1422; Podhaskie v Seventh Chelsea Assoc., 3 AD3d 361, 362-363; Stabile v Wiener, 291 AD2d 395, 396, lv dismissed 98 NY2d 727).