Opinion
December 4, 1995
Appeal from the Supreme Court, Suffolk County (Newmark, J.).
Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, the aforementioned branch of the plaintiff's motion is granted, and the matter is remitted to the Supreme Court, Suffolk County, for a trial on the issue of damages.
The uncontroverted evidence at trial established that the plaintiff was injured when the ladder upon which he was standing suddenly collapsed, causing the plaintiff to fall. The jury, in response to interrogatories, found that the respondent Paul S. Lewis violated Labor Law § 240 in that he failed to furnish scaffolding or ladders which would provide the worker with proper protection. However, the jury found that it had not been proven that the respondent's violation of Labor Law § 240 (1) was a proximate cause of the injuries. The trial court denied the plaintiff's motion for judgment as a matter of law as to the finding that the violation of Labor Law § 240 was not a proximate cause of the accident.
It is well-settled that in order to establish a prima facie case under Labor Law § 240 (1), a plaintiff need only show that the ladder or other safety device upon which he was standing collapsed (see, Gordon v Eastern Ry. Supply, 82 N.Y.2d 555; Lopez v 36-2nd J Corp., 211 A.D.2d 667; Bryan v City of New York, 206 A.D.2d 448). Once the jury found that Labor Law § 240 was violated, there was no evidence on this record upon which the jury could conclude that the violation of Labor Law § 240 was not a proximate cause of the injuries (see, Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513; Boice v Jegarmont Realty Corp., 204 A.D.2d 674).
The plaintiff also purports to appeal from the Supreme Court's dismissal of the third-party complaint brought by the respondent against the plaintiff's employer, which asserted causes of action for indemnity and contribution. However, the plaintiff cannot appeal from this dismissal because the judgment from which the plaintiff appeals contains no adjudicatory provision dismissing the third-party complaint (see, Town of Massena v Niagara Mohawk Power Corp., 45 N.Y.2d 482, 488). Furthermore, the plaintiff is not aggrieved by the dismissal of the third-party action because he did not and could not sue the third-party defendant directly (see, CPLR 5511; Workers' Compensation Law § 11; Keyes v Jennings Co., 150 A.D.2d 758; Rogers v Huggins, 106 A.D.2d 621). Thompson, J.P., Ritter, Joy and Florio, JJ., concur.