Gulotta v. Bechtel Corp.

245 A.D.2d 75, 664 N.Y.S.2d 801

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1997
• Status: Published

Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered September 23, 1996, which, inter alia, granted plaintiffs’ motion for partial summary judgment on the issue of liability under Labor Law § 240 (1), denied as premature defendant and third-party plaintiff Northberry Structures’ cross motion for summary judgment against third-party defendant Northberry Corporation for common-law indemnification, and denied defendant Lehrer McGovern Bovis’ cross motion for summary judgment against Northberry Structures on the issue of contractual indemnification, unanimously affirmed, without costs.

A party held strictly liable under Labor Law § 240 may seek common-law indemnification from the party or parties actually responsible for the injured plaintiff’s work and supervision thereof provided that the one seeking indemnity is not itself guilty of some negligence beyond the strict statutory liability (see, Kelly v Diesel Constr. Div., 35 NY2d 1, 5). The motion court properly denied Northberry Structures’ cross motion since issues of fact exist as to its responsibility for safety precautions at the subject construction site (see, Mas v Two Bridges Assocs., 75 NY2d 680; D'Amico v Manufacturers Hanover Trust Co., 177 AD2d 441).

The court also properly found that questions of fact precluded summary judgment on Lehrer McGovern Bovis’ contractual indemnity claim against Northberry Structures in view of issues of fact as to whether its activities at the job site exceeded that of mere general supervisory authority (see, General Obligations Law § 5-322.1; Brown v Two Exch. Plaza Partners, 76 NY2d 172). Concur—Sullivan, J. P., Ellerin, Wallach, Williams and Andrias, JJ.