Upon the foregoing papers the motion and the cross motions are determinated as follows:
Plaintiff OC and RN were both employed by Rockledge Scaffolding Corp, and they each sustained personal injury on July 12, 2003, when a portion of the sidewalk shed they were in the process of dismantling collapsed, causing them to fall some 20 feet. The sidewalk shed was constructed in 2000 alongside a building known as 275 West 96th Street, in Manhattan. It is undisputed that Mr. OC and Mr. RN were not provided with any safety devices. Defendant C Condominium is the owner of the building and defendant BW Management Group, Inc. (BW) is its managing agent. On July 20, 2001 C entered into a contract with York Restoration Corp. (York) to perform exterior masonry restoration and repair work to the building’s facade.
RN commenced an action in the Supreme Court, Bronx County against BW, Donald E. Wilson, York and C (Index No. 23398/03) to recover damages for personal injury he sustained in this construction accident. That court, in a decision and order dated August 26, 2005, granted Mr. RN’s motion for partial summary judgment on his Labor Law § 240(1) claims against BW and C, and denied the motion as to York, as an issue of fact existed as to York’s responsibility for the accident, and as to whether York was a general contractor, within the meaning of the Labor Law. The court also determined that Mr. RN’s request for summary judgment on his other Labor Law claims were moot. York’s motion for summary judgment dismissing the complaint and all cross claims was denied, and Blue Wood’s cross motion to dismiss the complaint and the cross claims for indemnification were denied.
Mr. RN apparently discontinued his claims against York. On September 7, 2006 a jury trial was held in the Bronx County action on Wilson, BW and C’s cross claims against York for contractual indemnification. The sole question presented to the jury was “Did the bike accident of July 12, 2003 involving Rockledge Scaffolding’s employee RN arise out of, directly or indirectly, result from or relate to the work performed by defendant York Restoration Corp. pursuant to its contract with C Condominium, dated July 20, 2001?” The jury returned a unanimous verdict, answering this question in the negative, and the court stated on the record that the cross claimants were not, as a matter of law, entitled to indemnification from York.
OC commenced this action on November 30, 2004 and the note of issue was filed on July 14, 2006. Mr. OC now moves for summary judgment on his Labor Law § 240(1) claims against C and BW on the ground of collateral estoppel. It is asserted that as his injuries arise out of the same accident as that of Mr. RN, and as the issue of these defendants’ liability has already been determined in the RN action, these defendants are precluded from relitigating this issue in this action. Defendants C and BW, in opposition, assert that based on the jury verdict in that action on the cross claims for indemnification, collateral estoppel is inapplicable here. Defendants assert that factual changes regarding the type of work that was being performed at the time of the accident raise new questions as to whether Mr. OC was engaged in an activity enumerated under Labor Law § 240(1) at the time of the accident; whether C and BW are proper parties to this action, as they are not the owner of the sidewalk shed; whether the work performed by Mr. OC involved any alteration of the premises; and whether changes in the law which were not raised at the time of the Bronx County summary judgment decision, affecting completed work would preclude liability under Labor Law § 240.
To Be Cont…
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