[Cite as: 261 A.D.2d 180, 690 N.Y.S.2d 14 (1st Dep't 1999).]
Supreme Court, Appellate Division, First Department, New York.
Andrzej BACZYK, Plaintiff-Respondent-Appellant,
PARK 25TH ASSOCIATES, et al., Defendants-Appellants-Respondents.
Park 25th Associates, et al., Third-Party Plaintiffs-Appellants,
United National Environmental Services Company, Inc., Third-Party Defendant-
[And A Second Third-Party Action]
May 11, 1999.
Mary Heaney, for Plaintiff-Respondent-Appellant.
M. Regan, for Defendants-Appellants-Respondents and Third-Party
M. Agulnick, for Third-Party Defendant-Respondent.
J.P., WILLIAMS, WALLACH, RUBIN and MAZZARELLI, JJ.
Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered
September 12, 1997, which, inter alia, granted defendants' motion
for summary judgment insofar as it sought dismissal of plaintiff's Labor
Law § 240(1) and 241(6) causes of action, but denied defendants'
motion for summary judgment insofar as it sought dismissal of plaintiff's
Labor Law § 200and common-law claims;denied that branch of defendant/third-party
plaintiffs' summary judgment motion for a conditional judgment against
the third-party defendant based on contractual and common law indemnity;and
denied plaintiff's cross motion for summary judgment upon his Labor Law
§ 240(1) and 241(6) claims, unanimously affirmed, without costs.
Because the record raises factual issues as
to whether negligence by defendants caused plaintiff's accident, the motion
court properly denied defendants' motion to dismiss plaintiff's Labor Law
§ 200 and common-law negligence claims. The same issues also warranted
the denial of defendants' motion for an award of conditional judgment against
the third-party defendant on contractual and common-law indemnity theories
(see, Smith v. Cassadaga Valley Cen. School Dist., 178 A.D.2d 955,
578 N.Y.S.2d 747; see also, City of New York v. Consolidated Edison
Co. of New York, 198 A.D.2d 31, 603 N.Y.S.2d 47, lv. denied
83 N.Y.2d 757, 615 N.Y.S.2d 874, 639 N.E.2d 415).
Also proper was the motion court's dismissal of
plaintiff's Labor Law § 240(1) and 241(6) claims, since the injuries
sustained by plaintiff did not result from either a gravity-related risk within the contemplation of Labor Law Section 240(1) or a code violation
within the contemplation of Labor Law Section 241(6) (see, Ross v. Curtis-Palmer
Hydro-Electric Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82;
Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219,
583 N.E.2d 932; Dias v. Stahl, 256 A.D.2d 235, 682 N.Y.S.2d 383).
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