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AURIEMMA v. BILTMORE THEATRE

2294, 2295, 2295A, 2295B, 116971/03, 590748/04, 590502/05.

82 A.D.3d 1 (2011)

917 N.Y.S.2d 130

JIMMY AURIEMMA et al., Respondents, v. BILTMORE THEATRE, LLC, et al., Appellants. SWEET CONSTRUCTION CORP. et al., Third-Party Plaintiffs-Respondents-Appellants, v. MASS ELECTRIC CONSTRUCTION COMPANY, Third-Party Defendant-Respondent/Appellant-Respondent, ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Third-Party Defendant-Appellant-Respondent, and JOHN CIVETTA & SONS, INC., et al., Third-Party Defendants-Appellants-Respondents/Respondents. SWEET CONSTRUCTION OF LONG ISLAND, LLC, et al., Second Third-Party Plaintiffs-Respondents-Appellants, v. MASS ELECTRIC CONSTRUCTION COMPANY, Second Third-Party Defendant-Respondent/Appellant-Respondent, ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Second Third-Party Defendant-Appellant-Respondent, and JOHN CIVETTA & SONS, INC., et al., Second Third-Party Defendants-Appellants-Respondents/Respondents, et al., Second Third-Party Defendant.

Appellate Division of the Supreme Court of New York, First Department.

Decided January 27, 2011.

Attorney(s) appearing for the Case

Nicoletti Gonson Spinner & Owen LLP, New York City ( Laura M. Mattera of counsel), for John Civetta & Sons, Inc., and another, appellants-respondents/respondents.

Devereaux Baumgarten , New York City ( Michael J. Devereaux of counsel), for respondents-appellants.

London Fischer LLP, New York City ( Brian A. Kalman and Anthony F. Tagliagambe of counsel), for Mass Electric Construction Company, respondent/respondent-appellant.

Lazare Potter & Giacovas LLP, New York City ( Jeremy M. Sokop and Andrew Premisler of counsel), for St. Paul Fire and Marine Insurance Company, appellant-respondent.

Alexander J. Wulwick , New York City, for Auriemma respondents.

ANDRIAS, J.P., DeGRASSE and MANZANET-DANIELS, JJ. concur.

OPINION OF THE COURT

CATTERSON, J.

In this personal injury action, the plaintiff asserts that a four-foot-deep open pit at his work site was an elevation-related hazard for which the defendants failed to provide a safety device as required by Labor Law § 240 (1). Because the defendants have not raised an issue of fact with regard to a violation of the statute or whether the plaintiff was the sole proximate cause of his own injuries, partial summary...

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