Opinion
November 29, 1993
Appeal from the Supreme Court, Suffolk County (Floyd, J.).
Ordered that the order is reversed insofar as appealed from, on the law, the plaintiffs' motion for partial summary judgment as to liability is granted, and the matter is remitted to the Supreme Court, Suffolk County, for a trial as to damages; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that the plaintiffs are awarded one bill of costs, payable by the defendants appearing separately and filing separate briefs.
We agree with the plaintiffs that the defendants have failed to controvert their prima facie showing that the scaffold and ladder provided to the plaintiff failed to provide "proper protection", as required by Labor Law § 240 (1), and that this violation was a proximate cause of the accident (see, Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513; Greishaber v City of New Rochelle, 113 A.D.2d 821).
While the testimony of the site superintendent for the defendant F.J. Sciame Construction Co., Inc. (hereinafter F.J. Sciame) at an examination before trial raises a question of fact as to the precise manner in which the accident occurred, the defendants failed to rebut the plaintiffs' contention that Robert Whalen fell from the ladder because it was unsecured, and was caused to sway when a person was on it. Nor is there anything in the record to indicate that the ladder was equipped with any safety devices to help break Whalen's fall, or that he was provided with any safety devices to help prevent the fall (see, Figueroa v Manhattanville Coll., 193 A.D.2d 778).
However, we affirm so much of the order as denied F.J. Sciame's cross motion for summary judgment against the third-party defendant Duncan Interiors, on the issue of contractual indemnification, as there are issues of fact as to whether the negligence of F.J. Sciame contributed to this accident, which would preclude enforcement of the indemnification provision of the contract (see, General Obligations Law § 5-322.1; DeFilippis Crane Serv. v Joannco Contr. Corp., 132 A.D.2d 517). Balletta, J.P., O'Brien, Santucci and Joy, JJ., concur.