Opinion
June 15, 1998
Appeal from the Supreme Court, Kings County (G. Aronin, J.).
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The plaintiff Esteban Ossorio, who was employed to perform brick work on the facade of an apartment building, allegedly sustained injuries when the rope holding up the scaffold upon which he was standing broke, causing him to fall six stories to the ground. At his examination before trial, Ossorio stated that he did not remember with specificity how the fall occurred. However, a police report of the accident stated that Mr. Ossorio fell to the ground "after [the] rope from [the] scaffold broke". In contrast, an employee of the owner of the property, the defendant Forest Hills South Owners, Inc. (hereinafter Forest Hills), stated at his examination before trial that Mr. Ossorio had admitted to him that he had cut his own rope with the machine that he was using to cut bricks.
The Supreme Court correctly denied that branch of the plaintiffs' motion which was for summary judgment on the issue of liability pursuant to Labor Law § 240 Lab. (1). Unlike those situations where a scaffold collapses for no apparent reason, thereby raising the presumption that the scaffold did not provide proper protection within the meaning of Labor Law § 240 Lab. (1), here there is a question of fact as to whether the injured plaintiff's fall was due to his own conduct in cutting the rope ( see, Tweedy v. Roman Catholic Church of Our Lady of Victory, 232 A.D.2d 630; Styer v. Vita Constr., 174 A.D.2d 662).
Moreover, Forest Hills is not entitled to summary judgment on its cross claim for indemnification against the defendant Florentia Contracting Company, Inc., as issues of fact remain. as to whether Florentia Contracting Company, Inc., was negligent in the supervision, direction, and control of Mr. Ossorio's work ( cf., Clark v. 345 E. 52d St. Owners, 245 A.D.2d 410; Isnardi v. Genovese Drug Stores, 242 A.D.2d 672; O'Brien v. Key Bank, 223 A.D.2d 830; Gange v. Tilles Inv. Co., 220 A.D.2d 556, 558; Richardson v. Matarese, 206 A.D.2d 354, 355).
Bracken, J. P., O'Brien, Santucci and Joy, JJ., concur.