| Mendelsohn v Goodman |
| 2009 NY Slip Op 08193 [67 AD3d 753] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Allen B. Mendelsohn et al., Plaintiffs, v John Goodman,Respondent, Icon Construction, Appellant-Respondent, and Koral Brothers,Respondent-Appellant. |
—[*1] Savona, D'Erasmo & Hyer, LLC, New York, N.Y. (Raymond M. D'Erasmo and Joseph F.X.Savona of counsel), for defendant-respondent-appellant.
In an action to recover damages for personal injuries, etc., the defendant Icon Constructionappeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County(Pines, J.), dated April 3, 2008, as denied that branch of its motion which was for summaryjudgment on its cross claim for common-law indemnification insofar as asserted against thedefendant Koral Brothers, and the defendant Koral Brothers cross-appeals, as limited by itsnotice of appeal and brief, from so much of the same order as denied that branch of its crossmotion which was for summary judgment on its cross claim for common-law indemnificationinsofar as asserted against the defendant Icon Construction, and granted that branch of themotion of the defendant Icon Construction which was for summary judgment dismissing somuch of the complaint as alleged common-law negligence and violation of Labor Law §200 insofar as asserted against it.
Ordered that the cross-appeal from so much of the order as granted that branch of the motionof the defendant Icon Construction which was for summary judgment dismissing so much of thecomplaint as alleged common-law negligence and violation of Labor Law § 200 insofar asasserted against it is dismissed, as the defendant Koral Brothers is not aggrieved by that portionof the order (see CPLR 5511; Doran v Ransomes Am. Corp., 253 AD2d 449,450 [1998]); and it is further,
Ordered that the order is affirmed insofar as appealed from, and insofar as [*2]reviewed on the cross appeal, without costs or disbursements.
Murray H. Goodman, incorrectly sued herein as John Goodman, owned property inSouthampton, and retained the defendant Koral Brothers (hereinafter Koral) as the generalcontractor to conduct renovations on the property. Koral entered into a verbal subcontractagreement with the defendant Icon Construction (hereinafter Icon) to complete the roofing andsiding work on the project. Keith MacDonald, the sole shareholder of Icon, entered into a verbalagreement with the plaintiff's decedent Ercument Savas Kara and his company JSI Contracting toperform the roofing and siding work. While removing shingles from the back of either the mainhouse or the guest house on the property, Kara allegedly was injured when a plank fell from ascaffold and hit him on the head.
The Supreme Court properly denied that branch of Koral's motion which was for summaryjudgment on its cross claim for common-law indemnification insofar as asserted against Icon.Koral failed to establish its prima facie entitlement to judgment as a matter of law since it failedto demonstrate that it was not negligent, and that Icon was either negligent or exclusivelysupervised and controlled Kara's work site (see Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 685[2005]; Reilly v DiGiacomo & Son, 261 AD2d 318 [1999]). Accordingly, the denial ofthat branch of Koral's motion was proper, regardless of the sufficiency of the opposition papers(see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Cunningham v Alexander's King Plaza,LLC, 22 AD3d 703, 707 [2005]).
The Supreme Court also correctly denied that branch of Icon's motion which was forsummary judgment on its cross claim for common-law indemnification insofar as assertedagainst Koral since an award of summary judgment on a claim for common-law indemnificationis appropriate only where there are no triable issues of fact concerning the degree of faultattributable to the parties (see Tama vGargiulo Bros., Inc., 61 AD3d 958 [2009]; Kwang Ho Kim v D & W Shin RealtyCorp., 47 AD3d 616, 620 [2008]; Coque v Wildflower Estates Devs., Inc., 31 AD3d 484 [2006];Freeman v National Audubon Socy., 243 AD2d 608 [1997]). Icon failed to make such ashowing here. Rivera, J.P., Eng, Chambers and Hall, JJ., concur.