VANRIEL v. A. WEISSMAN REAL ESTATE

Plaintiff in this personal injury action fell from a scaffold and sustained injuries while working for Smart, a subcontractor at a construction site owned by Sun Chemical Corporation and managed by Weissman Real Estate. Plaintiff moved for summary judgment on the issue of liability on his Labor Law § 240(1) claim and MRT, the general contractor at the construction site, Sun, Weissman and Smart all cross-moved for summary judgment dismissing the complaint. In support of its cross motion, Smart argued that plaintiff was its employee, that the scaffold from which plaintiff fell was not defective and that plaintiff's fall was caused by his own failure to lock the wheels of the scaffold. MRT, Sun and Weissman then cross-moved seeking indemnification from Smart. The motion court denied plaintiff's motion and the cross motions but this Court modified to the extent of granting plaintiff's summary judgment motion on the issue of liability since "the scaffold on which he was working did not prevent him from falling" ( 262 A.D.2d 56).

At the outset of the trial to determine the indemnification issues, the trial court properly deemed Smart's arguments, made in support of its cross motion for summary judgment seeking to dismiss plaintiff's complaint, to be judicial admissions and precluded Smart from introducing evidence contradicting these admissions (see, Walsh v. Pyramid Co. of Onondaga, 228 A.D.2d 259). Following the trial, where the jury found that Smart alone directed and controlled the work in the course of which plaintiff was injured, the court properly granted MRT, Sun and Weissman's motion for common-law indemnification.

We have considered Smart's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.