Dose v. Jenn-Matt Corp.

239 A.D.2d 899, 661 N.Y.S.2d 811, 1997 N.Y. App. Div. LEXIS 6253

Opinion

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in granting plaintiffs’ motion for partial summary judgment against defendant JennMatt Corporation (Jenn-Matt) pursuant to Labor Law § 240 (1) and § 241 (6). Jenn-Matt was the construction manager hired by defendants William and Bonita Brader in connection with the construction of their single-family home. The evidence submitted by plaintiffs fails to establish their entitlement to judgment as a matter of law (see, CPLR 3212 [b]). There are triable issues of fact whether Jenn-Matt possessed sufficient authority and responsibility over the project to be held liable for the alleged violations of sections 240 (1) and 241 (6) (see, Rel-yea v Bushneck, 208 AD2d 1077; Kenny v Fuller Co., 87 AD2d 183, Iv denied 58 NY2d 603).

The court properly granted Jenn-Matt a conditional judgment against third-party defendant, Home Insulation & Supply, Inc. (Home Insulation), for common-law indemnification. Jenn-Matt submitted proof in admissible form that it did not control, direct or supervise the injury-producing work, and Home Insulation failed to raise a triable issue of fact whether Jenn-Matt’s potential liability to plaintiffs is other than vicarious (see, Sikorski v Springbrook Fire Dist., 225 AD2d 1041; Mackey v Beacon City School Dist., 216 AD2d 534, 535; Allman v Ciminelli Constr. Co., 184 AD2d 1022, 1023). (Appeals from Order of Supreme Court, Erie County, Gorski, J.—Summary Judgment.) Present—Denman, P. J., Green, Callahan, Balio and Boehm, JJ.