Brutcher v. Dallas Homes, Inc.

237 A.D.2d 876, 656 N.Y.S.2d 991, 1997 N.Y. App. Div. LEXIS 3459

Opinion

Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied the motion of third-party plaintiff, Dallas Homes, Inc. (Dallas), for partial summary judgment against third-party defendant, J & P Custom Masonry (J & P). Dallas, the general contractor on a residential construction project, seeks common-law indemnification from J & P, its masonry subcontractor, for liability imposed upon Dallas under Labor Law § 240 (1) as the result of injuries sustained by Charles W. Brutcher (plaintiff), a J & P employee. Dallas met its initial burden on the motion by submitting proof that it did not supervise, direct or control J & P’s work (see, Hayes v Crane Hogan Structural Sys., 191 AD2d 978; Damon v Starkweather, 185 AD2d 633). In response, J & P submitted evidence that the failure of plaintiffs scaffold resulted from a defective condition of the premises rather than a defect in J & P’s materials or methods of work (see, Miller v Wilmorite, Inc., 231 AD2d 843). J & P thereby raised a triable issue of fact whether Dallas’s liability is solely vicarious (cf., Paterson v Hennessy, 206 AD2d 919; Allman v Ciminelli Constr. Co., 184 AD2d 1022; see also, Miller v Wilmorite, Inc., supra). (Appeal from Order of Supreme Court, Onondaga County, Stone, J.—Summary Judgment.) Present—Denman P. J., Green, Pine, Balio and Boehm, JJ.