Rockefeller University v. Tishman Construction Corp.

246 A.D.2d 339, 666 N.Y.S.2d 911, 1998 N.Y. App. Div. LEXIS 35

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 1998
• Status: Published

Opinion

Order, Supreme Court, New York County (Herman Cahn, J.), entered October 30, 1996, which, insofar as appealed from, denied the motion of third-party defendants subcontractors Rosen & Morelli Masons, a Joint Venture, Royal Mason Associates, Inc., and Morelli Masons, Inc. (Rosen) for summary judgment dismissing third-party plaintiff general contractor’s (Tishman) cause of action for implied indemnification, unanimously affirmed, with costs.

Rosen’s argument that the contract between Tishman and plaintiff owner Rockefeller University, which requires Tishman to supervise and direct the work, necessarily precludes Tishman’s claims for implied indemnification against the subcontractors, has been considered and rejected by this Court on appeals taken by other subcontractors (240 AD2d 341; 244 AD2d 158). As for Rosen’s evidence of Tishman’s actual supervision of the former’s work, we agree with the motion court that it does not conclusively show that Tishman’s role was that of Rosen’s on-site supervisor as opposed to an occasional advisor kept abreast of progress (compare, supra, with 232 AD2d 155, 156, lv denied 89 NY2d 811). Concur—Rosenberger, J. P., Wallach, Rubin, Williams and Tom, JJ.