SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

493 

CA 15-01275 

PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND SCUDDER, JJ. 

 

JAMES M. HELD AND THERESA M. HELD, 

PLAINTIFFS, 

V MEMORANDUM AND ORDER

THE PIKE COMPANY, AMTHOR STEEL, INC., AND 

CATHOLIC HEALTH SYSTEM, INC., DEFENDANTS. 

----------------------------------------- 

THE PIKE COMPANY, AMTHOR STEEL, INC., AND 

CATHOLIC HEALTH SYSTEM, INC., THIRD-PARTY 

PLAINTIFFS-RESPONDENTS,

V

 

CME ASSOCIATES, INC., THIRD-PARTY 

DEFENDANT-APPELLANT. 

 

THE SOBEL LAW GROUP, HUNTINGTON (CURTIS SOBEL OF COUNSEL), AND

GOERGEN, MANSON & MCCARTHY, BUFFALO, FOR THIRD-PARTY

DEFENDANT-APPELLANT. 

PILLINGER MILLER TARALLO, LLP, SYRACUSE (JEFFREY D. SCHULMAN OF

COUNSEL), FOR THIRD-PARTY PLAINTIFFS-RESPONDENTS. 

 

Appeal from a judgment of the Supreme Court, Erie County (Patrick

H. NeMoyer, J.), entered October 10, 2014. The judgment directed

third-party defendant to pay $1,147,049.14, plus interest, to

third-party plaintiffs. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs. 

Memorandum: Plaintiffs commenced this Labor Law and common-law

negligence action seeking damages for injuries sustained by James M.

Held (plaintiff) when he slipped on a steel beam and fell 15 feet to

the ground. Supreme Court granted plaintiffs’ motion for partial

summary judgment on liability under Labor Law § 240 (1) against

defendants-third-party plaintiffs (third-party plaintiffs), who were,

respectively, the owner, the general contractor, and a subcontractor

on the construction project. Third-party plaintiffs commenced a

third-party action against third-party defendant, CME Associates, Inc.

(CME), seeking contractual and common-law indemnification and

contribution on the ground that CME’s negligence in leaving a slippery

substance on the beam caused plaintiff’s injuries. The court granted
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CA 15-01275 

plaintiffs’ motion to sever the damages-only trial from the thirdparty action. Plaintiffs and third-party plaintiffs agreed to submit

the issue of damages to the court on papers alone, and the court

awarded plaintiffs damages. After a trial on the third-party action,

the court issued a judgment against CME, from which it now appeals. 

Contrary to CME’s contention, it was not held liable under Labor

Law § 240 (1) but, rather, it was held liable for its negligence in

causing the accident. It is well settled that, where an owner or

contractor is held liable to a plaintiff pursuant to Labor Law §§ 240

or 241, the owner or contractor may recover, “under familiar commonlaw principles, full indemnification . . . from the actor who caused

the accident (the active tort-feasor), and, where the cause is shared,

contribution” (Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35

NY2d 1, 6-7; see Lapi v Rosewood Home Bldrs., 256 AD2d 1008, 1009; see

also Krajnik v Forbes Homes, Inc., 120 AD3d 902, 904-905). 

Contribution is proper where the culpable parties are subject to

liability for damages for the same personal injury, “whether or not

the culpable parties are allegedly liable for the injury under the

same or different theories” (Nassau Roofing & Sheet Metal Co. v

Facilities Dev. Corp., 71 NY2d 599, 603). 

CME further contends that it was denied the opportunity to

litigate the issue of plaintiffs’ damages. We agree with third-party

plaintiffs that CME waived that contention by not opposing plaintiffs’

motion to sever (see generally Neckles v VW Credit, Inc., 23 AD3d 191,

192; Graziano v 118-17 Liberty Ave. Mgt. Corp., 209 AD2d 582, 583). 

We have considered CME’s remaining contentions and conclude that they

are without merit.

Entered: June 10, 2016 Frances E. Cafarell

Clerk of the Court