Shamir v. Farash Corp.

—Order unanimously reversed on the law without costs and motions granted. Memorandum: Plaintiffs commenced this action asserting direct and derivative claims based on injuries sustained by plaintiff husband in a fall from a scaffold while he was performing electrical work at a renovation site. Plaintiffs sued defendant Farash Corporation, the general contractor, based on negligence and Labor Law violations. Defendant impleaded its subcontractor, Per-Con Electric Corp. (Per-Con), the employer, on a theory of common-law indemnification. Plaintiffs appeal from the order insofar as it denied their motion for partial summary judgment holding defendant liable pursuant to Labor Law § 240 (1). Defendant appeals from the order insofar as it denied its motion for summary judgment on its third-party complaint against Per-Con.

Plaintiffs are entitled to partial summary judgment. They established that the worker fell from the scaffold while ascending it (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 ; Rocovich v Consolidated Edison Co., 78 NY2d 509 ). Defendant failed to demonstrate the existence of a triable question of fact in opposition to the motion. Defendant’s reliance on this Court’s decision in Carlos v Rochester Gen. Hosp. ( 163 AD2d 894 ) is misplaced (see, e.g., Morris v Mark TV Constr. Co., 203 AD2d 922 ; Madigan v United Parcel Serv., 193 AD2d 1102 , 1103; Halkias v Hamburg Cent. School Dist., 186 AD2d 1040 ).

Similarly, we conclude that defendant is entitled to summary judgment on the third-party complaint. Defendant dem