Opinion
2001-07147
Argued May 24, 2002
August 19, 2002.
In an action to recover damages for personal injuries, etc., the defendant D. Frantellizzi Sons, Inc., appeals from so much of an order of the Supreme Court, Queens County (Weiss, J.), dated June 13, 2001, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, or for summary judgment on its cross claim for indemnification against the defendant Bailieborough Masonry Corporation.
Tromello, McDonnell Kehoe, Melville, N.Y. (James S. Kehoe of counsel), for appellant.
James P. Nunemaker, Jr., Uniondale, N.Y. (Gene W. Wiggins of counsel), for defendants-respondents Frank Bahar, Inc., and Frank Baharestani.
Michael F.X. Manning, Melville, N.Y. (John P. Humphreys of counsel), for defendant-respondent Bailieborough Masonry Corporation.
Before: SANDRA J. FEUERSTEIN, J.P., CORNELIUS J. O'BRIEN, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is modified by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as asserted against the appellant, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
This action arises out of a work-site accident which occurred during the construction of a house owned by the defendant Frank Bahar, Inc. The injured plaintiff alleges that he sustained injuries when a brick fell from an upper floor and struck him on the head. The general contractors at the site, the defendants Frank Bahar, Inc., and Frank Baharestani, subcontracted various aspects of the project to several subcontractors. The subcontractors included the injured plaintiff's employer, Teddy's Development Corp., which was hired to perform the carpentry work, and the defendant D. Frantellizzi Sons, Inc. (hereinafter Frantellizzi), which was hired to perform the masonry work. Frantellizzi further subcontracted the labor portion of its contract to the defendant Bailieborough Masonry Corporation (hereinafter Bailieborough). The plaintiffs allege, inter alia, common-law negligence and violations of Labor Law § 200 and § 241(6), against, among others, Frantellizzi. Frantellizzi moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, or, for summary judgment on its cross claim for indemnification against Bailieborough. The Supreme Court denied the motion, and Frantellizzi appeals.
The Supreme Court properly denied those branches of Frantellizzi's motion which were for summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action insofar as asserted against it (see Everitt v. Nozkowski, 285 A.D.2d 442) and also properly denied summary judgment on its cross claim for indemnification against the defendant Bailieborough (see Mitchell v. Fiorini Landscape, 284 A.D.2d 313).
However, since the plaintiffs failed to cite any Industrial Code provision that Frantellizzi could be said to have violated, that branch of the motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action should have been granted (see DeGennaro v. Long Is. R.R., 258 A.D.2d 496; Cardenas v. American Ref-Fuel Co. of Hempstead, 244 A.D.2d 377).
Frantellizzi's remaining contention is without merit.
FEUERSTEIN, J.P., O'BRIEN, TOWNES and COZIER, JJ., concur.