Opinion
October 16, 1995
Appeal from the Supreme Court, Nassau County (Kutner, J.).
Ordered that the appeal from the order is dismissed, as that order was superseded by the order and interlocutory judgment (one paper); and it is further,
Ordered that the order and interlocutory judgment (one paper) is modified, on the law, (1) by deleting the provision thereof awarding judgment in favor of the plaintiff and against Tilles Investment Co. on the issue of liability under Labor Law § 240 (1), and substituting therefor a provision denying the plaintiff's cross motion for partial summary judgment on the issue of liability under Labor Law § 240 (1), (2) by deleting the provision thereof which denied the branch of the motion of John Electric Service which was for summary judgment dismissing the plaintiff's cause of action under Labor Law § 200, and substituting therefor a provision granting that branch of the motion, and (3) by deleting the provision thereof which denied the application of Tilles Investment Co. for summary judgment against John Electric Service on the issue of indemnification, and substituting therefor a provision granting the application conditionally in the event that the plaintiff recovers damages from Tilles Investment Co.; as so modified, the order and interlocutory judgment (one paper) is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court did not err in declining to dismiss the plaintiff's cause of action pursuant to Labor Law § 240 (1). A fall from a height of five feet involves an "elevation-related risk" covered under Labor Law § 240 (1) (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561). Furthermore, the fact that the plaintiff fell off of the ladder only after he sustained an electric shock does not preclude recovery under Labor Law § 240 (1) for injuries sustained as a result of the fall from the ladder (see, Izrailev v. Ficarra Furniture, 70 N.Y.2d 813). However, the plaintiff is not entitled to summary judgment under Labor Law § 240 (1) as there are questions of fact as to whether, inter alia, the ladder, which was not shown to be defective in any way, failed to provide proper protection, and whether the plaintiff should have been provided with additional safety devices (see, Vessio v. Ador Converting Biasing, 215 A.D.2d 648; Katisfarakis v. Central School Dist. No. 1., 201 A.D.2d 622; cf., Gordon v. Eastern Ry. Supply, supra; Whalen v. Sciame Constr. Co., 198 A.D.2d 501).
The cause of action pursuant to Labor Law § 200 should have been dismissed as there was no showing that Tilles Investment Co. directed or controlled the plaintiff's work (see, Comes v. New York State Elec. Gas Corp., 82 N.Y.2d 876; Vilardi v. Berley, 201 A.D.2d 641; Edwards v. Twenty-Four Twenty-Six Main St. Assocs., 195 A.D.2d 592). While the plaintiff alleged in his affidavit in opposition to the motion to dismiss that he saw the Tilles Investment Co. project manager "clearly supervise" the work, this is a bald, conclusory allegation which will not defeat a motion for summary judgment (see, Lupoli v. Lupoli, 213 A.D.2d 457).
Similarly, Tilles Investment Co. was entitled to a conditional judgment on the issue of indemnity against John Electric Service pending the determination of the plaintiff's action (see, Kemp v Lakelands Precast, 55 N.Y.2d 1032; McCabe v. Queensboro Farm Prods., 22 N.Y.2d 204; Richardson v. Matarese, 206 A.D.2d 354). Tilles Investment Co. is entitled to indemnification as it made a prima facie showing that it neither directed nor controlled the plaintiff's work (see, Mackey v. Beacon City School Dist., 216 A.D.2d 534; Richardson v. Matarese, supra; Edlin v. Glinsky, 154 A.D.2d 648). Thompson, J.P., Altman, Goldstein and Florio, JJ., concur.