| Waitkus v Metropolitan Hous. Partners |
| 2008 NY Slip Op 02884 [50 AD3d 260] |
| April 1, 2008 |
| Appellate Division, First Department |
| Gerald Waitkus, Appellant, v Metropolitan HousingPartners, Defendant, and Carlisle Soho East Trust, Respondent and Third-PartyPlaintiff-Appellant. Exterior Erecting Systems, Inc., Third-Party Defendant-Respondent, et al.,Third-Party Defendant. |
—[*1] Lifflander & Reich, LLP, New York (Kent B. Dolan of counsel), for Carlisle Soho EastTrust, respondent/appellant. Baxter, Smith, Tassan & Shapiro, P.C., White Plains (Sim R. Shapiro of counsel), forExterior Erecting Systems, Inc., respondent.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered January 2, 2007,which granted the motion of defendant Carlyle Soho East Trust, sued herein as Carlisle SohoEast Trust, for summary judgment dismissing the complaint against it and denied plaintiff's crossmotion for partial summary judgment on liability against Carlyle, denied Carlyle's motion forsummary judgment on its contractual indemnification and contribution claims against third-partydefendant Exterior Erecting Systems and granted the cross motion by Exterior for summaryjudgment dismissing the third-party complaint against it, unanimously affirmed, without costs.
Plaintiff's Labor Law § 200 claim raised no issue of fact as to whether defendantsexercised supervisory control over the work site (Ross v Curtis-Palmer Hydro-Elec. Co.,81 NY2d 494, 505 [1993]). The Labor Law § 241 (6) claims were also properly dismissedbecause Industrial Code (12 NYCRR) § 23-2.1 (a) (1) and § 23-1.7 (e) (2) do notapply to these facts. Even assuming, [*2]for the sake of argument,that the panels that caused plaintiff's injury were being stored on the roof at some time before hebegan working there, they were not in storage but rather were being installed at the time of thealleged incident. Section 23-2.1 (a), which refers to storage of material, thus does not apply (see McLaughlin v Malone & Tate Bldrs.,Inc., 13 AD3d 859 [2004]). In any event, plaintiff was in a work area, not a passageway,further removing the injury from the ambit ofsection 23-2.1 (see Militello v 45 W.36th St. Realty Corp., 15 AD3d 158 [2005]). Similarly, Industrial Code § 23-1.7(e) (2) does not apply because the record contains no testimony that plaintiff was injured due totripping in his work area, that any tools were scattered about, or that he was injured by a sharpprojection.
The third-party claim for contractual indemnification was properly dismissed since thepromise on which it was based is found in the main agreement between Carlyle and the originalcontractor, to which third-party defendant Exterior was not a signatory. While it is true that theconstruction subcontract signed by Exterior incorporated the main agreement by reference,"[u]nder New York law, incorporation clauses in a construction subcontract, incorporating primecontract clauses by reference into a subcontract, bind a subcontractor only as to prime contractprovisions relating to the scope, quality, character and manner of the work to be performed by thesubcontractor" (Bussanich v 310 E. 55th St. Tenants, 282 AD2d 243, 244 [2001]).
We have considered the parties' remaining contentions for affirmative relief and find themwithout merit. Concur—Lippman, P.J., Tom, Williams and Acosta, JJ.