Ross v. Baker

Lazer, J. P.,

concurs in part and dissents in part and votes to affirm the order appealed from, with the following memorandum: During the era when the owners of one- and two-family homes were still responsible for Labor Law violations on their property, such a homeowner contracted for some roofing repairs with a roofing company which was a two-man partnership. While working on the homeowner’s roof, one of the partners fell through it. He sued the homeowner alleging negligence, violation of Labor Law § 241 (6) (safe place to work) and violation of Labor Law § 240 (2) (failure to provide scaffolding and other safety devices). Seeking contribution, the homeowner impleaded the roofing company, alleging negligence and the same violations of the Labor Law. Special Term denied the roofing company’s motion for summary judgment dismissing the homeowner’s third-party complaint.

On this appeal, the majority correctly finds no merit in the roofing company’s contentions concerning the claims of negligence and violation of Labor Law § 241 (6). My colleagues have voted, however, to grant summary judgment dismissing the homeowner’s Labor Law § 240 claim largely because the affirmation in opposition by the homeowner’s lawyer relied on hearsay advice from an unnamed expert for the contention that scaffolding was necessary for the proper protection of those working on the roof. While I agree that the affirmation does not meet the burden of a party opposing summary judgment, an issue of fact still exists as to the need for scaffolding or other safety devices.

What I rely on in voting to let the claim under Labor Law §240 stand are the declarations of the roofing company’s partner John Ross who is a plaintiff who sued the homeowner. In his complaint and verified bill of particulars, this partner asserts that the homeowner should have provided scaffolding and other safety devices. Under the statute, it is also the obligation of contractors to supply scaffolding or other necessary safety devices. At the trial, the statements the plaintiff John Ross has made in his complaint and bill of particulars concerning the need for this type of protection may well be receivable in evidence as admissions of the contracting company in which he is a partner (see, Partnership Law § 22). The fact that the plaintiff John Ross has brought a personal lawsuit does not necessarily immunize his partnership from the effect of his statements in that lawsuit.

With one partner of the roofing company swearing there was a need for scaffolding and other safety devices and the partnership entity denying that there was any such need, it seems to me that there is a fact issue as to the validity of the claim for contribution based on violation of Labor Law § 240. For that reason, I vote to affirm denial of summary judgment.