Opinion
16598 302167/08
01-12-2016
Jonathan AUSBY, Plaintiff–Appellant, v. 365 WEST END LLC, et al., Defendants–Respondents–Appellants. Abilene, Inc., Third–Party Plaintiff–Respondent–Appellant, v. Themis Chimneys, Inc., Third–Party Defendant–Respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. McGaw, Alventosa & Zajac, Jericho (Ross P. Massler and James K. O'Sullivan of counsel), for respondents-appellants. Camacho Mauro Mulholland, LLP, New York (Kathleen M. Mulholland of counsel), for respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
McGaw, Alventosa & Zajac, Jericho (Ross P. Massler and James K. O'Sullivan of counsel), for respondents-appellants.
Camacho Mauro Mulholland, LLP, New York (Kathleen M. Mulholland of counsel), for respondent.
Opinion
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered February 10, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240(1), and granted third-party defendant's (Themis) motion for summary judgment dismissing the third-party claims for common-law indemnification and contribution, unanimously reversed, on the law, without costs, plaintiff's motion granted, and Themis's motion denied.
The conflicting evidence as to whether the shaking of the ladder from which plaintiff fell was caused by his foreman standing on it with him or bumping into it on the ground does not raise a material issue of fact as to defendants' liability for plaintiff's injuries. “The failure to secure the ladder ... against slippage by any means whatsoever constitutes a violation of Labor Law § 240(1) as a matter of law, for which defendants are absolutely liable” (Urrea v. Sedgwick Ave. Assoc., 191 A.D.2d 319, 320, 595 N.Y.S.2d 46 1st Dept.1993; see Montalvo v. J. Petrocelli Constr., Inc., 8 A.D.3d 173, 780 N.Y.S.2d 558 1st Dept.2004; Lopez–Dones v. 601 W. Assoc., LLC, 98 A.D.3d 476, 949 N.Y.S.2d 165 2d Dept.2012 ). Because Labor Law § 240(1) was violated in either version of the accident, no credibility issue is presented (see Schultze v. 585 W. 214th St. Owners Corp., 228 A.D.2d 381, 644 N.Y.S.2d 722 1st Dept.1996 ).
Themis failed to establish that it is not liable to defendant/third-party plaintiff Abilene, Inc. for common-law indemnification and contribution, since an issue of fact exists whether Themis directed and controlled plaintiff's work (see Naughton v. City of New York, 94 A.D.3d 1, 10–11, 940 N.Y.S.2d 21 1st Dept.2012 ). Plaintiff's foreman testified that Themis's president instructed nonparty MadAlex's employees regarding the work, and Themis's president acknowledged that he met at the site with Abilene's vice president for construction while the work was being done.
RENWICK, J.P., ANDRIAS, SAXE, MOSKOWITZ, JJ., concur.