Summary
In Nazario v 222 Broadway, LLC, 28 NY3d 1054 (2016), the Court of Appeals reversed the Appellate Division, First Department's holding that plaintiff was entitled to summary judgment because the plaintiff established that the ladder from which he fell did not provide adequate protection for the work that was being performed.
Summary of this case from Synysta v. 450 PartnersOpinion
11-21-2016
Justin NAZARIO, Respondent, v. 222 BROADWAY, LLC, et al., Respondents. 222 Broadway, LLC, et al., Third–Party Respondents, v. Knight Electrical Services Corp., Third–Party Appellant. (And Other Third–Party Actions.)
O'Connor Redd LLP, Port Chester (Amy L. Fenno of counsel), for third-party defendant-appellant. Arye, Lustig & Sassower, P.C., New York City (D. Carl Lustig, III of counsel), for Justin Nazario, respondent. Lawrence, Worden, Rainis & Bard, P.C., Melville (Leslie McHugh of counsel), for 222 Broadway, LLC, and another, respondents/third-party plaintiffs-respondents. Cerussi & Spring, White Plains (Thomas F. Cerussi of counsel), for Lime Energy Co., respondent.
O'Connor Redd LLP, Port Chester (Amy L. Fenno of counsel), for third-party defendant-appellant.
Arye, Lustig & Sassower, P.C., New York City (D. Carl Lustig, III of counsel), for Justin Nazario, respondent.
Lawrence, Worden, Rainis & Bard, P.C., Melville (Leslie McHugh of counsel), for 222 Broadway, LLC, and another, respondents/third-party plaintiffs-respondents.
Cerussi & Spring, White Plains (Thomas F. Cerussi of counsel), for Lime Energy Co., respondent.
MEMORANDUM:
The order of the Appellate Division, insofar as appealed from, should be modified, without costs, by denying plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim and remitting the case to the Appellate Division for consideration of the issues raised but not determined on the appeal to that court, and, as so modified, affirmed, and the certified question should be answered in the negative.
Plaintiff is not entitled to summary judgment under Labor Law § 240(1). While using an A-frame ladder, plaintiff fell after receiving an electrical shock. Questions of fact exist as to whether the ladder failed to provide proper protection, and whether plaintiff should have been provided with additional safety devices (see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ; Barreto v. Metropolitan Transp. Auth., 25 N.Y.3d 426, 13 N.Y.S.3d 305, 34 N.E.3d 815 [2015], rearg. denied 25 N.Y.3d 1211, 16 N.Y.S.3d 515, 37 N.E.3d 1159 [2015] ). Defendants Lime Energy Co. and Jones Lang LaSalle Americas, Inc. were properly granted summary judgment on their contractual indemnification claims against Knight Electrical Services Corp.
Chief Judge DiFIORE and Judges PIGOTT, RIVERA, ABDUS–SALAAM, STEIN, FAHEY and GARCIA concur.
On review of submissions pursuant to section 500.11 of the Rules, order, insofar as appealed from, modified, without costs, by denying plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim and remitting the case to the Appellate Division, First Department, for consideration of issues raised but not determined on the appeal to that court, and, as so modified, affirmed, and certified question answered in the negative, in a memorandum.