Cunningham v LeChase Constr.
2011 NY Slip Op 09366 [90 AD3d 1480]
December 23, 2011
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 1, 2012


Edward Cunningham, III, Appellant,
v
LeChase Construction et al., Respondents. Frederico Wrecking Co., Inc., Third-Party Plaintiff-Appellant, v Contour Erection and Siding Systems, Inc., Third-Party Defendant-Respondent. LeChase Construction Services, LLC, et al., Third-Party Plaintiffs-Appellants, v Contour Erection and Siding Systems, Inc., Third-Party Defendant-Respondent.

—[*1] 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 complaints. [*2]

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., 90 AD3d 1477 [2011]). Present—Scudder, P.J., Smith, Centra, Green and Gorski, JJ.