Loper v. City of Rochester

209 A.D.2d 1052, 619 N.Y.S.2d 475, 1994 N.Y. App. Div. LEXIS 12175

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1994
• Status: Published

Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying the motion of defendant-third-party plaintiff, The City of Rochester (City), for a conditional judgment for common-law indemnification against third-party defendant, Hudson Steel Fabricators and Erectors. Periodic inspection of the progress of the work by the City’s assistant architect does not constitute the type of supervision or control necessary to establish the City’s common-law liability for the injuries sustained by plaintiff at the worksite (see, Aragon v 233 W. 21st St, 201 AD2d 353, 354; Curtis v 37th St Assocs., 198 AD2d 62, 63). Absent proof that the City’s liability is other than vicarious, the motion should have been granted (see, Paterson v Hennessy, 206 AD2d 919; Allman v Ciminelli Constr. Co., 184 AD2d 1022, 1023). (Appeal from Order of Supreme Court, Monroe County, Siragusa, J.—Indemnification.) Present—Green, J. P., Pine, Wesley, Callahan and Davis, JJ.