Baez v. R & R Contracting, Inc.

287 A.D.2d 351, 731 N.Y.S.2d 174, 2001 N.Y. App. Div. LEXIS 9657

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 2001
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered January 19, 2001, which granted the cross motion of defendants and third-party plaintiffs 240 East 175th Street Housing Development Fund Corporation and Mount Hope Housing Co., Inc. for summary judgment against defendant R & R Contracting, and granted the motion of third-party defendant Parkset Plumbing for summary judgment dismissing the third-party complaint and cross claims against it, unanimously affirmed, without costs.

Plaintiff seeks damages for injuries sustained when, while working on a construction site in the employ of plumbing subcontractor Parkset Plumbing, a beam fell through the ceiling above him and allegedly struck him. Since it is clear, as a matter of law, that plaintiffs injury was not the result of any negligence on Parkset’s part and did not arise out of or result from Parkset’s performance under its subcontract, summary judgment dismissing the third-party complaint and cross claims against Parkset was proper (cf., Derdiarian v Felix Contr. Corp., 51 NY2d 308). Also correct was the motion court’s grant of summary relief in favor of the subject building’s owners upon their claims for indemnification against general contractor R & R Contracting, since it is clear that, in contrast to R & R, they had no active control over the construction site (see, Sheehan v Fordham Univ., 259 AD2d 328; Brink v Yeshiva Univ., 259 AD2d 265). Concur — Wallach, J. P., Rubin, Buckley, Friedman and Marlow, JJ.