Ferguson v. City of New York

272 A.D.2d 90, 708 N.Y.S.2d 287, 2000 N.Y. App. Div. LEXIS 4927

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered on or about April 14, 1999, which, insofar as appealed from, granted plaintiffs motion for summary judgment on the issue of defendant East Harlem’s liability under Labor Law § 240 (1), denied East Harlem’s cross motion for summary judgment on the issue of its liability under Labor Law § 240 (1), granted defendant City’s cross motion for summary judgment on the issue of its right to contractual indemnification from East Harlem, and denied East Harlem’s cross motion for summary judgment on the issue of its right to common-law indemnification from defendant Youth Action Homes, unanimously modified, on the law, to deny plaintiffs motion for summary judgment as against East Harlem on the issue of its liability under Labor Law § 240 (1), and otherwise affirmed, without costs.

An issue of fact exists as to whether East Harlem was a contractor at the renovation project owned by the City and at which plaintiff was injured. Such issue is raised primarily by the fact that East Harlem’s contract with the City’s Department of Employment did not call for renovation work but only for job training, whereas the City’s Department of Housing Preservation and Development’s contract that did call for renovation at the project was with Youth Action Homes only. Also cutting against East Harlem’s status as contractor is the fact that the subcontract of plaintiffs employer, third-party defendant Eliou Steel Fabrication, was only with Youth Action Homes. East Harlem did not become a contractor at the project simply because much of its job training was to be done at the project. There is no showing of actual control by East Harlem over Eliou, and the record is inconclusive as to whether East Harlem and Youth Action Homes are alter egos warranting the piercing of their corporate veils. For these same reasons, summary judgment in favor of East Harlem on its claim for common-law indemnification against Youth Action Homes is premature. Concur — Rubin, J. P., Andrias, Saxe, Buckley and Friedman, JJ.