| Uribe v Fairfax, L.L.C. |
| 2008 NY Slip Op 01623 [48 AD3d 336] |
| February 26, 2008 |
| Appellate Division, First Department |
| John Uribe et al., Respondents, v Fairfax, L.L.C., et al.,Appellants and Third-Party Plaintiffs. Michael Garstin, Third-Party Defendant-Respondent. (Anda Second Third-Party Action.) |
—[*1] Hoey, King, Toker & Epstein, New York City (Robert O. Pritchard, Jr., of counsel), forMichael Garstin, respondent.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered September 1, 2006,which, insofar as appealed from, granted the motion of third-party defendant Garstin (Tenant) forsummary judgment dismissing the third-party complaint, and denied the cross motion of Fairfax,L.L.C., Rockrose Development Corp. and Rockrose Corp. (Owners) for summary judgmentagainst Tenant on the issue of their entitlement to common-law indemnification, unanimouslyaffirmed, without costs.
Plaintiff John Uribe was injured when he fell from a ladder while in the employ of acontractor hired by Tenant to perform alteration work to Tenant's apartment in Owners' building.Uribe was granted partial summary judgment on his Labor Law § 240 (1) claim againstOwners, and Owners seek to hold Tenant liable based on Tenant's breach of a lease provisionrequiring Owners' prior written consent to the work, and discussions between Tenant and thecontractor regarding which phase of the job to start first.
Dismissal of the third-party complaint was proper where the record evidence establishes thatTenant was not in the apartment when the subject work was performed, gave the contractor noinstructions regarding how to do the work, and did not supply any equipment or tools. Tenantalso exercised no supervisory authority or control over the job, and Tenant's alleged violation ofthe lease is not relevant to the issue of common-law indemnification in light of the lack ofevidence that the accident was attributable to negligence on Tenant's part (see Correia vProfessional Data Mgt., 259 AD2d 60, 65 [1999]). Similarly, Tenant's alleged conversationswith the contractor regarding which tasks to perform first are insufficient to [*2]establish control over the work (see Garcia v Petrakis, 306AD2d 315 [2003]; Richichi v Construction Mgt. Tech., 244 AD2d 540 [1997]).Concur—Lippman, P.J., Tom, Nardelli, Catterson and Moskowitz, JJ.