CUNNINGHAM, III, EDWARD v. LECHASE CONSTRUCTION ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1078
CA 11-00958
PRESENT: SCUDDER, P.J., SMITH, CENTRA, GREEN, AND GORSKI, JJ.
EDWARD CUNNINGHAM, III, PLAINTIFF-APPELLANT,
V ORDER
LECHASE CONSTRUCTION, FREDERICO
WRECKING CO., INC., AND FRIENDS OF FINGER
LAKES PERFORMING ARTS CENTER, INC.,
DEFENDANTS-RESPONDENTS.
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FREDERICO WRECKING CO., INC., THIRD-PARTY
PLAINTIFF-APPELLANT,
V
CONTOUR ERECTION AND SIDING SYSTEMS, INC.,
THIRD-PARTY DEFENDANT-RESPONDENT.
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LECHASE CONSTRUCTION SERVICES, LLC AND
FRIENDS OF FINGER LAKES PERFORMING ARTS
CENTER, INC., THIRD-PARTY
PLAINTIFFS-APPELLANTS,
V
CONTOUR ERECTION AND SIDING SYSTEMS, INC.,
THIRD-PARTY DEFENDANT-RESPONDENT.
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.
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
-2- 1078
CA 11-00958
complaints.
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