Opinion
2013-02-14
Mary IMBRIALE, etc., Plaintiff–Respondent, v. RICHTER & RATNER CONTRACTING CORP., et al., Defendants–Appellants, Empire Projects, Inc., Defendant. Richter & Ratner Contracting Corp., et al., Third–Party Plaintiffs–Appellants, v. Competition Architectural Metals, Inc., Third–Party Defendant–Respondent. [And Another Third–Party Action]
Malapero & Prisco, New York (Frank J. Lombardo of counsel), for appellants. Rappaport Glass Levine & Zullo, LLP, Hauppauge (Michael G. Glass of counsel), for Mary Imbriale, respondent.
Malapero & Prisco, New York (Frank J. Lombardo of counsel), for appellants. Rappaport Glass Levine & Zullo, LLP, Hauppauge (Michael G. Glass of counsel), for Mary Imbriale, respondent.
Milber Makris Plousadis & Seiden, LLP, White Plains (James K. Baden of counsel), for Competition Architectural Metals, Inc., respondent.
MAZZARELLI, J.P., FRIEDMAN, MANZANET–DANIELS, ROMÁN, CLARK, JJ.
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered June 8, 2012, which, to the extent appealed from as limited by the briefs, denied the motion by defendants/third party plaintiffs Richter & Ratner Contracting Corp. (R & R), Ana Tzarev New York, LLC (ATNY), 24 West 57th APF, LLC, and 24 West 57th Street Realty, LLC (collectively, 24 West 57th) to renew plaintiff's motion for summary judgment as to liability under Labor Law § 240(1), granted plaintiff's motion to sever the third party complaint from the main action, and denied defendants/third party plaintiffs' motion for summary judgment on their claims for common-law and contractual indemnification against third-party defendant Competition Architectural Metals, Inc. (Competition), unanimously modified, on the law, to grant ATNY and 24 West 57th summary judgment on their third-party claim for common law indemnification, and otherwise affirmed, without costs.
The alleged new facts offered by defendants in support of renewal of plaintiff's motion for summary judgment as to liability under Labor Law § 240(1) do not change the prior determination ( seeCPLR 2221[e][2] ). Defendants argued that the decedent's tool bag, which until recently had been in the decedent's wife's possession, contained suction cups that could have anchored the top of the decedent's ladder to the glass wall against which the otherwise unsecured ladder had been leaning before it slid and collapsed. However, they failed to adduce any evidence that the decedent knew that the suction cups could be used to anchor the top of the ladder to the glass or that he had been directed or knew he was expected to use the suction cups for that purpose ( see Gallagher v. New York Post, 14 N.Y.3d 83, 88–89, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010];Pietrowski v. ARE–East Riv. Science Park, LLC, 86 A.D.3d 467, 928 N.Y.S.2d 266 [1st Dept. 2011];Paz v. City of New York, 85 A.D.3d 519, 925 N.Y.S.2d 453 [1st Dept. 2011] ).
The court properly severed the third-party action from the main action so as to avoid undue delay of the determination of damages in the main action ( seeCPLR 1010; Cross v. Cross, 112 A.D.2d 62, 64, 491 N.Y.S.2d 353 [1st Dept. 1985] ). Given that an issue of fact exists as to whether any negligence on the part of defendant/third-party plaintiff R & R, the general contractor, contributed to the causation of the accident, the court also properly denied R & R's motion for summary judgment on the third-party claims for common-law and contractual indemnification against Competition, the subcontractor that employed plaintiff's decedent. However, defendants/third-party plaintiffs ATNY and 24 West 57th, the tenant and owner of the property, respectively, were entitled to summary judgment on their third-party claims for common law indemnification, inasmuch as Competition neither rebutted the evidence of its own negligence nor adduced any evidence of negligence on the part of either ATNY or 24 West 57th.