| Torres v LPE Land Dev. & Constr., Inc. |
| 2008 NY Slip Op 06702 [54 AD3d 668] |
| September 2, 2008 |
| Appellate Division, Second Department |
| Armando Torres, Plaintiff, v LPE Land Development &Construction, Inc., Defendant, Trades Construction Services Corp., Appellant, and D & SonsConstruction Corp., Respondent. (And Third-Party Actions.) |
—[*1] Brody, O'Connor & O'Connor, Northport (Scott A. Brody and Patricia A. O'Connor ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant Trades ConstructionServices Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court,Kings County (Harkavy, J.), dated March 14, 2007, as denied its cross motion for summaryjudgment on its cross claim for contractual indemnification against the defendant D & SonsConstruction Corp., and granted that branch of the cross motion of the defendant D & SonsConstruction Corp. which was for summary judgment dismissing the cross claims asserted by itagainst that defendant.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, allegedly injured when he fell from a scaffold, sought to recover damagespursuant to Labor Law §§ 200, 240 (1) and § 241 (6) for the injuries hesustained in the accident against the owner of the property, LPE Land Development &Construction Inc., the general contractor, Trades Construction Services Corp. (hereinafterTrades), and subcontractor D & Sons Construction Corp. (hereinafter D & Sons). Tradescross-claimed against D & Sons for contractual and common-law indemnification.
D & Sons cross-moved, inter alia, for summary judgment dismissing the cross claimsasserted against it by Trades on the grounds, inter alia, that it did not control the plaintiff'sinjury-producing activity and that Trades was not entitled to indemnification. Trades opposed the[*2]cross motion, alleging that questions of fact existed as to theextent of D & Sons' control, and cross-moved for summary judgment on its cross claim forcontractual indemnification against D & Sons. In a single order, the Supreme Court granted thatbranch of D & Sons' cross motion which was for summary judgment dismissing Trades' crossclaims and denied Trades' cross motion. We affirm the order insofar as appealed from.
To hold a subcontractor liable as a statutory agent for violations of Labor Law § 240(1) or section 241 (6), there must be a showing that the party "had the authority to supervise andcontrol the work giving rise to these duties" (Kehoe v Segal, 272 AD2d 583, 584 [2000];see Russin v Louis N. Picciano & Son, 54 NY2d 311 [1981]). D & Sons established itsentitlement to judgment as a matter of law with respect to Trades' cross claim for common-lawindemnification by establishing that it did not have authority to control the plaintiff'sinjury-producing work. In opposition, Trades failed to raise a triable issue of fact as to whether D& Sons had any authority over the plaintiff's work on the project, other than to provide anestimate, hire a subcontractor, and supply siding. Accordingly, the Supreme Court properlygranted that branch of D & Sons' cross motion which was for summary judgment dismissingTrades' cross claim for common-law indemnification.
A party is entitled to contractual indemnification when the intention to indemnify is "clearlyimplied from the language and purposes of the entire agreement and the surroundingcircumstances" (Canela v TLH 140Perry St., LLC, 47 AD3d 743, 744 [2008]). Here, Trades failed to demonstrate thelegitimacy of a purported agreement which was undated and did not specify the party to beindemnified, the work to be done, or the location of the work; nor did Trades demonstrate, fromthe surrounding circumstances, the existence of an ongoing relationship in which D & Sons hadagreed to indemnify Trades. Since Trades failed to establish its entitlement to judgment as amatter of law in connection with its cross claim for contractual indemnification, the SupremeCourt properly denied its cross motion for summary judgment on that cross claim. Moreover,since D & Sons established its entitlement to judgment as a matter of law on this issue, andTrades failed to raise a triable issue of fact in opposition, the Supreme Court properly grantedthat branch of D & Sons' cross motion which was for summary judgment dismissing Trades'cross claim for contractual indemnification.
Trades' remaining contention is without merit. Skelos, J.P., Covello, Leventhal and Belen,JJ., concur.