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Santangelo v. Fluor Constructors International3/15/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal insofar as it reserved decision be and the same hereby is unanimously dismissed and the order is affirmed without costs.
(*2)
Memorandum: This wrongful death action was commenced following the death of Guido Edward Mitravich (decedent), an employee of Frank Lill & Son, Inc. (Lill) who sustained fatal injuries at a construction site. A manlift manufactured by second third-party defendant JLG Industries, Inc. (JLG), leased by third third-party defendant APi, Inc. (APi), and operated by a Lill co-worker struck the ductwork upon which decedent stood, causing him to fall 53 feet to the ground (see Santangelo v Fluor Constructors Intl., 266 AD2d 893). Plaintiffs alleged causes of action for common-law negligence and violations of the Labor Law against several defendants, including APi. In April 1998 plaintiffs moved for partial summary judgment on liability against the owner of the construction site on the Labor Law ยง 240 (1) claim, and in May 1998 APi cross-moved for summary judgment dismissing the complaint against it. By the time of the motion and cross motion, Lill was a third-party defendant in an action commenced against it by defendants in the main action other than APi and, one month before plaintiffs' motion, Lill had commenced a second third-party action against, inter alia, JLG. Supreme Court denied, inter alia, the motion and cross motion. We modified the order on appeal by granting APi's cross motion and dismissing the complaint against it, determining that "APi met its initial burden by establishing that it did not control or supervise the manner in which decedent performed his work and that the manlift [leased by APi from a third party] was not defective, and plaintiffs failed to raise an issue of fact" (Santangelo, 266 AD2d at 894). In rejecting the contention of plaintiffs that APi's cross motion was premature because they had not completed discovery (see CPLR 3212 ), we determined that plaintiffs failed to establish that facts essential to justify opposition to the cross motion were within the exclusive knowledge of APi or another party or that they could not have completed discovery in the two years since commencement of the action (Santangelo, 266 AD2d at 894).
After that appeal was perfected but before the issuance of our decision therein, Lill obtained evidence that APi had modified the manlift by installing two sheet metal hooks on the basket. Lill thereafter commenced a third third-party action against APi based upon the alleged modifications. APi moved to dismiss the third third-party complaint against it or, alternatively, for summary judgment on the grounds of, inter alia, res judicata and collateral estoppel. JLG moved for summary judgment dismissing the second third-party complaint against it on the same grounds, and on the additional grounds that APi's modifications were the superseding cause of the accident and that there had been spoliation of the evidence. In the alternative, JLG sought a bifurcated trial. The court denied the motion of APi in its entirety and denied the motion of JLG to the extent that it (*3)sought summary judgment dismissing the second third-party complaint against it. The court reserved decision on that part of JLG's motion seeking a bifurcated trial.
The court properly refused to dismiss the second third-party and third third-party complaints against JLG and APi, respectively. We reject the contention of APi that res judicata bars the claim of Lill that APi's alleged modification of the manlift caused or contribut
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