Cunningham v Lechase Constr.
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Cunningham v Lechase Constr.
2011 NY Slip Op 09366
Decided on December 23, 2011
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2011
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., SMITH, CENTRA, GREEN, AND GORSKI, JJ.
1078 CA 11-00958
[*1]EDWARD CUNNINGHAM, III, PLAINTIFF-APPELLANT,
v
LECHASE CONSTRUCTION, FREDERICO WRECKING CO., INC., AND FRIENDS OF FINGER LAKES PERFORMING ARTS CENTER, INC., DEFENDANTS-RESPONDENTS. FREDERICO WRECKING CO., INC., THIRD-PARTY PLAINTIFF-APPELLANT, CONTOUR ERECTION AND SIDING SYSTEMS, INC., THIRD-PARTY DEFENDANT-RESPONDENT. LECHASE CONSTRUCTION SERVICES, LLC AND FRIENDS OF FINGER LAKES PERFORMING ARTS CENTER, INC., THIRD-PARTY PLAINTIFFS-APPELLANTS, CONTOUR ERECTION AND SIDING SYSTEMS, INC., THIRD-PARTY DEFENDANT-RESPONDENT.
Appeals from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered November 24, 2010 in a personal injury action. The order, inter alia, denied the motion of plaintiff for partial summary judgment on liability pursuant to Labor Law § 240 (1), granted those parts of the motions of defendants-third-party plaintiffs and third-party defendant seeking summary judgment dismissing the complaint, and granted that part of the motion of third-party defendant seeking summary judgment dismissing the third-party complaints.
MAXWELL MURPHY, LLC, BUFFALO (ALAN D. VOOS OF COUNSEL), FOR PLAINTIFF-APPELLANT.
BROWN & TARANTINO, LLC, BUFFALO (ANN M. CAMPBELL OF COUNSEL), FOR DEFENDANTS-RESPONDENTS AND THIRD-PARTY PLAINTIFFS-APPELLANTS.
MACKENZIE HUGHES LLP, SYRACUSE (JENNIFER P. WILLIAMS OF COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT.
[*2]
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying those parts of the motions of defendants-third-party plaintiffs and third-party defendant seeking summary judgment dismissing the Labor Law § 240 (1) claim and the Labor Law § 241 (6) claim to the extent that it is premised on a violation of 12 NYCRR 23-3.3 (h), reinstating those claims and denying that part of the motion of third-party defendant seeking summary judgment dismissing the third-party complaints and reinstating the third-party complaints, and as modified the order is affirmed without costs (see Charney v LeChase Constr., ___ AD3d ___ [Dec. 23, 2011]).
Entered: December 23, 2011
Frances E. Cafarell
Clerk of the Court
Decided on December 23, 2011
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., SMITH, CENTRA, GREEN, AND GORSKI, JJ.
1078 CA 11-00958
[*1]EDWARD CUNNINGHAM, III, PLAINTIFF-APPELLANT,
v
LECHASE CONSTRUCTION, FREDERICO WRECKING CO., INC., AND FRIENDS OF FINGER LAKES PERFORMING ARTS CENTER, INC., DEFENDANTS-RESPONDENTS. FREDERICO WRECKING CO., INC., THIRD-PARTY PLAINTIFF-APPELLANT, CONTOUR ERECTION AND SIDING SYSTEMS, INC., THIRD-PARTY DEFENDANT-RESPONDENT. LECHASE CONSTRUCTION SERVICES, LLC AND FRIENDS OF FINGER LAKES PERFORMING ARTS CENTER, INC., THIRD-PARTY PLAINTIFFS-APPELLANTS, CONTOUR ERECTION AND SIDING SYSTEMS, INC., THIRD-PARTY DEFENDANT-RESPONDENT.
Appeals from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered November 24, 2010 in a personal injury action. The order, inter alia, denied the motion of plaintiff for partial summary judgment on liability pursuant to Labor Law § 240 (1), granted those parts of the motions of defendants-third-party plaintiffs and third-party defendant seeking summary judgment dismissing the complaint, and granted that part of the motion of third-party defendant seeking summary judgment dismissing the third-party complaints.
MAXWELL MURPHY, LLC, BUFFALO (ALAN D. VOOS OF COUNSEL), FOR PLAINTIFF-APPELLANT.
BROWN & TARANTINO, LLC, BUFFALO (ANN M. CAMPBELL OF COUNSEL), FOR DEFENDANTS-RESPONDENTS AND THIRD-PARTY PLAINTIFFS-APPELLANTS.
MACKENZIE HUGHES LLP, SYRACUSE (JENNIFER P. WILLIAMS OF COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT.
[*2]
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying those parts of the motions of defendants-third-party plaintiffs and third-party defendant seeking summary judgment dismissing the Labor Law § 240 (1) claim and the Labor Law § 241 (6) claim to the extent that it is premised on a violation of 12 NYCRR 23-3.3 (h), reinstating those claims and denying that part of the motion of third-party defendant seeking summary judgment dismissing the third-party complaints and reinstating the third-party complaints, and as modified the order is affirmed without costs (see Charney v LeChase Constr., ___ AD3d ___ [Dec. 23, 2011]).
Entered: December 23, 2011
Frances E. Cafarell
Clerk of the Court
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