Mattioli v. Zuckerman

292 A.D.2d 268, 739 N.Y.S.2d 378

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2002
• Status: Published

Opinion

Order, Supreme Court, New York County (Edward Lehner, J.), entered February 8, 2001, which, to the extent appealed from as limited by the brief, granted the cross motion of defendant and third-party plaintiff Lehr Construction (Lehr) for summary judgment on its claim for conditional common-law indemnification against third-party defendant Dejil Systems, Inc., unanimously affirmed, without costs.

In this Labor Law action to recover for work site injuries allegedly sustained by plaintiff when he fell from a ladder, Lehr, the general contractor at the subject work site, is entitled to a conditional judgment on its third-party claim for common-law indemnification against subcontractor Dejil Systems, Inc., plaintiffs employer, since Lehr, in support of its cross motion, established that it had neither supervision nor control of the work plaintiff was performing at the time of his injury (see, Buccini v 1568 Broadway Assoc., 250 AD2d 466, 468; Aragon v 233 W. 21st St., 201 AD2d 353, 354). Although Dejil stresses that Lehr’s superintendent was on the work site and had the authority to prevent plaintiff from using inappropriate equipment, these circumstances, without more, were insufficient to raise a triable issue as to whether Lehr had actual supervision and control of the work subcontracted to Dejil that plaintiff was performing at the time of his accident (see, Buccini, 250 AB2d, supra at 468). Concur — Tom, J.P., Mazzarelli, Rosenberger, Wallach and Marlow, JJ.