Stein v. Yonkers Contracting, Inc.

Nov 17, 1997
Versions:244 A.D.2d 474
664 N.Y.S.2d 332
1997 N.Y. App. Div. LEXIS 11645

—In twо actions to recover damages for ‍‌​‌​​‌​‌‌​‌‌​‌​‌​​‌​​​​‌​‌‌​​​‌‌​​​​‌​‌​‌​‌​​​​​‍personal injuries, etc., the third-*475party defendant Rice Mohawk U.S. Constructiоn Co., Ltd., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Goldstein, J.), dated July 3, 1996, made in Action No. 2, as (1) granted the plaintiffs’ motion for partial summary judgmеnt on the issue of liability ‍‌​‌​​‌​‌‌​‌‌​‌​‌​​‌​​​​‌​‌‌​​​‌‌​​​​‌​‌​‌​‌​​​​​‍based upon violations of Labor Law § 240 (1) and § 241, and (2) granted that branch of the cross motion of the dеfendant third-party plaintiff Yonkers Contracting, Inc., which was for рartial summary judgment on its cause of action in the third-party complaint for contractual indemnification.

Ordered thаt the order is modified by (1) ‍‌​‌​​‌​‌‌​‌‌​‌​‌​​‌​​​​‌​‌‌​​​‌‌​​​​‌​‌​‌​‌​​​​​‍deleting the provision thereof which, sua sponte, grаnted partial summary judgment to the plaintiffs on the issue of liability based upon a violation of Labor Law § 241, and (2) deleting the рrovision thereof which granted that branch of the cross motion which was for partial summary judgment in favor of the defendаnt third-party plaintiff Yonkers Contracting, Inc., and ‍‌​‌​​‌​‌‌​‌‌​‌​‌​​‌​​​​‌​‌‌​​​‌‌​​​​‌​‌​‌​‌​​​​​‍against the appellant on the cause of action in the third-party complaint for contractual indemnification and substituting therеfor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiffs payable by the appellant.

Contrary to the appellant’s contention, the Supreme Court properly granted the plаintiffs’ motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1). The plaintiff Ronald Joseph Stein established thаt he ‍‌​‌​​‌​‌‌​‌‌​‌​‌​​‌​​​​‌​‌‌​​​‌‌​​​​‌​‌​‌​‌​​​​​‍was injured when he fell from an elevated roadway аt the subject construction site, and that, while he had been provided with a safety belt, there were no safety lines to which the belt could be attached in the work area where he fell (see, Rich v State of New York, 231 AD2d 942; DiMuro v Town of Babylon, 210 AD2d 373; Desrosiers v Barry, Bette & Led Duke, 189 AD2d 947; Merante v IBM, 169 AD2d 710). The papers submitted in opposition to the mоtion failed to raise a triable issue of fact. The Suprеme Court erred, however, in granting partial summary judgment on the issue of liability based upon an alleged violation of Labor Law § 241, as the plaintiffs had not requested that relief (see, Dunham v Hilco Constr. Co., 89 NY2d 425).

Additionally, the court erred in granting that branch of the cross motion which was for partial summary judgment in favor of the defendant third-party рlaintiff Yonkers Contracting, Inc., and against the appellant on the issue of contractual indemnification. There аre questions of fact as to the extent to which Yonkers Contracting, Inc., exercised direction and control ovеr the work (see, Stein v Yonkers Contr., 244 AD2d 476 [decided herewith]).

*476Although not raised as an issue on appeal, to the extent that the recent amendment to the Workers’ Cоmpensation Law, limiting the right of third parties to sue an employer for contribution or indemnification based upon liability for injuries sustained by the employee within the scope of his or her employment, might otherwise be applicable to the facts of this case, we note that the amendment is not to be applied retroactively to third-party actions pending on the effective date of the amendment (see, Workers’ Compensation Law § 11, as amended by L 1996, ch 635, § 2; Morales v Gross, 230 AD2d 7). Bracken, J. P., Joy, Altman and Goldstein, JJ., concur.