Smithtown DiCanio Org., Inc.

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Second DepartmentJul 10, 1995
217 A.D.2d 569 (N.Y. App. Div. 1995)
217 A.D.2d 569629 N.Y.S.2d 86

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July 10, 1995

Appeal from the Supreme Court, Suffolk County (Newmark, J.).

Ordered that the order is modified, on the law, by deleting the provision thereof which denied the plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240 (1) and subsituting therefor a provision granting the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable to the plaintiff and the third-party defendant Graco Construction Corp. by the defendant Smithtown DiCanio Organization, Inc.

The plaintiff was entitled to partial summary judgment on the issue of liability under Labor Law § 240 (1). The plaintiff submitted unrefuted proof that he was injured because the roof trusses upon which he was standing collapsed due to excessive weight (see, Richardson v. Matarese, 206 A.D.2d 353; Lagzdins v United Welfare Fund-Sec. Div., 77 A.D.2d 585; see also, Bras v Atlas Constr. Corp., 166 A.D.2d 401; LaLima v. Epstein, 143 A.D.2d 886) and that no safety devices were operating to prevent the collapse or the plaintiff's fall (see, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513).

However, the Supreme Court correctly denied the motion of the defendant Smithtown DiCanio Organization, Inc., for summary judgment on the issue of common law indemnification against Graco Construction Corp. as there were questions of fact as to which of the various contractors shared responsibility for this accident (see, Kelly v. Diesel Constr. Div., 35 N.Y.2d 1; Draiss v. Salk Constr. Corp., 201 A.D.2d 698; McNair v. Morris Ave. Assocs., 203 A.D.2d 433; Young v. Casabonne Bros., 145 A.D.2d 244). Bracken, J.P., Copertino and Hart, JJ., concur.

I concur with the majority on constraint of this Court's previous holding in Richardson v. Matarese ( 206 A.D.2d 353) and the holding of the Court of Appeals in Zimmer v. Chemung County Performing Arts ( 65 N.Y.2d 513) which, in reversing an order of the Appellate Division, Third Department, quoted with approval Justice Mikoll's statement that "[i]f the state of the building art is such that no devices have yet been devised to protect workers operating at such heights in dangerous work, it is illogical to conclude, given the purpose of the statute, that the responsibility of owners and contractors is then negated" (Zimmer v. Chemung County Performing Arts, 102 A.D.2d 993, 995 [dissent of Mikoll, J.]).

However, I cannot help but wonder if the Legislature truly intended for the statute to apply in a situation such as this where no safety device could have prevented the plaintiff's injuries when the roof on which he was standing completely collapsed. I note that there was no evidence that the roof was negligently constructed or maintained.

Accordingly, I would suggest that perhaps it is time for the Legislature to review the statute and this area of the law again.