Opinion
2192
November 13, 2003.
Order, Supreme Court, Bronx County (Anne Targum, J.), entered April 11, 2003, which, to the extent appealed from, denied the motion by defendants 2 Overhill Road Associates and The Blitman Building Corp. for summary judgment dismissing the complaint, and denied 2 Overhill Road Associates' motion for summary judgment in its third-party action against Structural Contracting Corp., unanimously affirmed, without costs.
Steven Gershowitz, for plaintiffs-respondents.
Lisa M. Comeau, for defendants-appellants.
Lisa M. Comeau, for third-party plaintiff-appellant.
Louis H. Liotti, for third-party defendant-respondent.
Before: Nardelli, J.P., Tom, Ellerin, Lerner, Friedman, JJ.
At the time plaintiff Sylvester Thomas was struck by a falling length of pipe, he was physically participating in the operation to unfasten and remove that pipe from the ceiling (cf. Roberts v. General Elec. Co., 97 N.Y.2d 737, and Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259). The primary issues are whether, given the nature of the injury-producing work, provision of a hoisting or securing device of the kind enumerated in Labor Law § 240(1) would have been necessary or expected and whether the absence of such safety devices was a substantial cause of plaintiff's harm. Questions of fact preclude summary disposition of these issues as well as plaintiff's claims for common-law negligence as codified in Labor Law § 200, and his claim under Labor Law § 241(6) related to possible Industrial Code violations (see Gawel v. Consolidated Edison Co. of New York, 237 A.D.2d 138). The third-party action for contractual indemnification is similarly dependent on factual determinations as to the third-party plaintiff's freedom from negligence (Itri Brick Corp. v. Aetna Cas. Sur. Co., 89 N.Y.2d 786, 795).
Motion seeking stay denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.