Opinion
June 17, 1991
Appeal from the Supreme Court, Suffolk County (Baisley, J.).
Ordered that the order is affirmed, without costs or disbursements.
Walter Vita Construction, Inc., a general contractor constructing a commercial building on property owned by the defendant Lumex, Inc., subcontracted with the third-party defendant Vita Yarusso, Inc. to perform the masonry work. The plaintiffs, employees of Vita Yarusso, Inc., were engaged in erecting an exterior wall of the building when, in order to facilitate the placement of mortar boxes on the scaffold on which they were working, the plaintiff Eric Styer removed at least one, and perhaps two, of the scaffold's outside crossbraces. Some 15 minutes later, the scaffold collapsed, and the plaintiffs fell to the ground.
The trial court properly denied the plaintiffs' summary judgment motion predicated upon Labor Law § 240 (1). Issues of fact exists as to whether there was a violation of that statute, and if so, whether it proximately caused the plaintiffs' injuries (see, Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 521; La Lima v Epstein, 143 A.D.2d 886, 888). The instant case is to be distinguished from those where scaffolding collapses for no apparent reason, giving rise to a presumption that the scaffolding was not adequate to provide "proper protection" pursuant to section 240 (1) (cf., Drew v Correct Mfg. Corp., 149 A.D.2d 893; Hauff v CLXXXII Via Magna Corp., 118 A.D.2d 485; Braun v Dormitory Auth., 118 A.D.2d 614). Given the plaintiff Styer's partial dismantling of the scaffold's support structure, a presumption that Labor Law § 240 (1) was violated does not lie. A reasonable fact-finder might conclude that the plaintiff Styer's action was the sole proximate cause of the scaffold's collapse (see, Cannata v One Estate, 127 A.D.2d 811; see also, Smith v Hooker Chems. Plastics Corp., 89 A.D.2d 361, 365-366), or that his conduct constituted an entirely unforeseeable superseding, intervening act (see, Mack v Altmans Stage Light. Co., 98 A.D.2d 468; cf., La Lima v Epstein, supra).
The trial court also properly denied the motion of Lumex, Inc., for summary judgment against the third-party defendants on its cause of action for indemnification. Sustaining a cause of action for indemnification would be premature absent a final determination as to the plaintiffs' causes of action (see, Smith v Hooker Chems. Plastics Corp., supra, at 366). Bracken, J.P., Eiber, Harwood and Balletta, JJ., concur.