| Nazario v 222 Broadway, LLC |
| 2016 NY Slip Op 07823 [28 NY3d 1054] |
| November 21, 2016 |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, January 11, 2017 |
| Justin Nazario, Respondent, v 222 Broadway, LLC, et al., Respondents. 222 Broadway, LLC, et al., Third-Party Plaintiffs-Respondents, v Knight Electrical Services Corp., Third-Party Defendant-Appellant. (And Other Third-Party Actions.) |
Decided November 21, 2016
Nazario v 222 Broadway, LLC, 135 AD3d 506, modified.
O'Connor Redd LLP, Port Chester (Amy L. Fenno of counsel), for third-party defendant-appellant.
Arye, Lustig & Sassower, P.C., New York City (D. Carl Lustig, III of counsel), for Justin Nazario, respondent.
Lawrence, Worden, Rainis & Bard, P.C., Melville (Leslie McHugh of counsel), for 222 Broadway, LLC, and another, respondents/third-party plaintiffs-respondents.
Cerussi & Spring, White Plains (Thomas F. Cerussi of counsel), for Lime Energy Co., respondent.
Memorandum.
The order of the Appellate Division, insofar as appealed from, should be modified, without costs, by denying plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim and remitting the case to the Appellate Division for consideration of the issues raised but not determined on the appeal to that Court, and, as so [*2]modified, affirmed, and the certified question should be answered in the negative.
Plaintiff is not entitled to summary judgment under Labor Law § 240 (1). While using an A-frame ladder, plaintiff fell after receiving an electrical shock. Questions of fact exist as to whether the ladder failed to provide proper protection, and whether plaintiff should have been provided with additional safety devices (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]; Barreto v Metropolitan Transp. Auth., 25 NY3d 426 [2015], rearg denied 25 NY3d 1211 [2015]). Defendants Lime Energy Co. and Jones Lang LaSalle Americas, Inc. were properly granted summary judgment on their contractual indemnification claims against Knight Electrical Services Corp.
Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order, insofar as appealed from, modified, without costs, by denying plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim and remitting the case to the Appellate Division, First Department, for consideration of issues{**28 NY3d at 1056} raised but not determined on the appeal to that Court, and, as so modified, affirmed, and certified question answered in the negative, in a memorandum.