Fraioli v. St. Joseph's Seminary

1 A.D.3d 280, 767 N.Y.S.2d 586, 2003 N.Y. App. Div. LEXIS 12514

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 2003
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Dianne Renwick, J.), entered December 19, 2002, which, to the extent appealed from, denied the motion of defendants St. Joseph’s Seminary and the Archdiocese for summary judgment on contractual and common-law indemnification against defendant Fitzgerald, unanimously affirmed, without costs.

Although there is no evidence of appellants’ negligence or supervision of the work sufficient to hold them other than vicariously liable under Labor Law § 240 (1), they have failed to present proof to establish general contractor Fitzgerald’s negligence, which is necessary for indemnification under the specific terms of the contract (Keohane v Littlepark House Corp., 290 AD2d 382 [2002]; Correia v Professional Data Mgt., 259 AD2d 60, 64 [1999]). With regard to common-law indemnification, issues of fact exist as to who erected the scaffolding which collapsed, and whether Fitzgerald had sufficient control and supervision over the work to be held liable in negligence. A general duty to supervise the work and ensure compliance with safety standards is insufficient to impose such liability (see Buccini v 1568 Broadway Assoc., 250 AD2d 466, 469 [1998]). Concur—Mazzarelli, J.P, Saxe, Lerner and Marlow, JJ.