Newell v. Almeter-Barry Construction Management, Inc.

245 A.D.2d 1081, 667 N.Y.S.2d 551

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1997
• Status: Published

Opinion

—Order insofar as appealed from unanimously reversed on the law with costs to third-party plaintiff and cross motion granted. Memorandum: Supreme Court erred in denying the cross motion of third-party plaintiff, Almeter-Barry Construction Management, Inc. (Almeter-Barry), for summary judgment in its action against third-party defendant, Gypsum Systems, Inc. (Gypsum), for contractual and common-law indemnification. Almeter-Barry met its initial burden on the cross motion by submitting evidence that it did not direct, control or supervise the manner or method of work performed by Gypsum employees; that Gypsum directed and supervised the work of its employees (see, Riley v Stickl Constr. Co., 242 AD2d 936; Norton v Bell & Sons, 237 AD2d 928; Sikorski v Springbrook Fire Dist., 225 AD2d 1041); and that its liability to plaintiffs, if any, exists by reason of its status as a construction manager and not by reason of active misconduct on its part (see, Brown v Two Exch. Plaza Partners, 76 NY2d 172, 179; Conley v Salt City Energy Venture, 234 AD2d 909, 910; Delaney v Spiegel Assocs., 225 AD2d 1102, 1103-1104). Daryl C. Newell (plaintiff), an employee of Gypsum, was injured while taping drywall; a stilt attached to plaintiff’s leg became entangled in an electrical cord, and plaintiff fell. Even assuming, arguendo, that a factual issue exists whether the electrical cord belonged to Gypsum or to another contractor, Gypsum failed to establish that AlmeterBarry was negligent in failing to direct the placement of electrical cords. There is no evidence that Almeter-Barry directed or supervised the work of any other contractor, and the general authority of Almeter-Barry to coordinate the work of the various contractors, inspect the work and enforce safety standards is not a sufficient basis for the imposition of liability (see, DePillo v Greater Auburn Land Co., 236 AD2d 863; Malecki v Wal-Mart Stores, 222 AD2d 1010; Flick v Eastman Kodak Co., 222 AD2d 1033). (Appeal from Order of Supreme Court, Erie County, Glownia, J.—Summary Judgment.) Present—Denman, P. J., Lawton, Wisner, Balio and Boehm, JJ.