Higgins v. Consolidated Edison Co. of New York, Inc. , 939 N.Y.S.2d 431 ( 2012 )

Order, Supreme Court, New York County (Judith A. Gische, J.), entered September 14, 2010, which granted plaintiffs motion to renew an order, same court and Justice, entered August 27, 2009, inter alia, which granted defendants Consolidated Edison Company of New York, Inc.’s and Case Contracting Ltd.’s motions for summary judgment dismissing plaintiffs Labor Law § 240 (1) cause of action, and upon renewal, adhered to its prior decision, unanimously modified, on the law, the motions for summary judgment denied, and otherwise affirmed, without costs.

The motion court properly granted the motion to renew in light of the Court of Appeals’ decision in Runner v New York Stock Exch., Inc. (13 NY3d 599 [2009]; see CPLR 2221 [e] [2]). However, upon renewal, plaintiffs Labor Law § 240 (1) should have been reinstated.

An issue of fact exists as to whether plaintiffs injuries were the direct consequence of the failure to provide adequate protection against the risk arising from “tugging” the cable to the sixth floor above (see Runner, 13 NY3d at 603). Because the record presents markedly different versions as to how the accident occurred, summary resolution of the Labor Law § 240 (1) claim is inappropriate.

The reinstatement of plaintiffs Labor Law § 240 (1) cause of action renders Consolidated Edison’s motion for indemnification against Case Contracting no longer academic. However, the motion should be considered by the motion court in the first instance (see e.g. Commissioner of the State Ins. Fund v Weiss-man, 90 AD3d 417 [2011]). Concur — Mazzarelli, J.P., Friedman, Acosta, Freedman and Abdus-Salaam, JJ. [Prior Case History: 2010 NY Slip Op 32493(11).]