Opinion
June 18, 1999
Appeal from Order of Supreme Court, Steuben County, Scudder, J., for Purple, Jr., J., pursuant to CPLR 9002 — Summary Judgment.
PRESENT: DENMAN, P. J., PINE, WISNER, HURLBUTT AND CALLAHAN, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Because third-party defendant has failed to brief on appeal the issue whether Supreme Court erred in granting the cross motion of defendants-third-party plaintiffs for common-law indemnification against it, we deem that issue abandoned (see, Ciesinski v. Town of Aurora, 202 A.D.2d 984).
The court erred in granting plaintiffs' motion for partial summary judgment on the issue of liability on the Labor Law § 240 Lab. (1) claim. There are issues of fact whether the scaffold was defective (see, Felker v. Corning Inc., 90 N.Y.2d 219, 224; Ghiandoni v. City of Niagara Falls, 258 A.D.2d 923 [decided Feb. 10, 1999]) and whether the conduct of plaintiff Timothy R. Karas was the sole proximate cause of the accident (see, Weininger v. Hagedorn Co., 91 N.Y.2d 958, 960, rearg denied 92 N.Y.2d 875; Mortellaro v. State Farm Mut. Auto. Ins. Co., A.D.2d [decided Mar. 19, 1999]). Thus, we modify the order by denying plaintiffs' motion.