| Quilliams v Half Hollow Hills School Dist. (CandlewoodSchool) |
| 2009 NY Slip Op 08202 [67 AD3d 763] |
| November 10, 2009 |
| Appellate Division, Second Department |
| James Quilliams, Plaintiff, v Half Hollow Hills SchoolDistrict (Candlewood School) et al., Defendants and Third-PartyPlaintiffs-Appellants-Respondents. Maryland Fabricators, Inc., Third-PartyDefendant-Respondent-Appellant. |
—[*1] Gartner & Bloom, P.C., New York, N.Y. (Susan P. Mahon, Kenneth A. Bloom, andChristine M. Messina of counsel), for third-party defendant-respondent-appellant.
In an action to recover damages for personal injuries, the defendants third-party plaintiffsappeal, as limited by their notice of appeal and brief, from so much of an order of the SupremeCourt, Suffolk County (Sgroi, J.), dated April 16, 2008, as denied that branch of their motionwhich was for conditional summary judgment on the third-party cause of action asserted by thedefendant third-party plaintiff E.W. Howell Construction for contractual indemnification, and thethird-party defendant cross-appeals from so much of the same order as granted those branches ofthe motion of the defendants third-party plaintiffs which were for conditional summary judgmenton the third-party cause of action asserted by the defendant third-party plaintiff Half HollowHills School District (Candlewood School) for contractual indemnification and for partialsummary judgment on the third-party cause of action to recover damages for breach of contract.
Ordered that the order is reversed insofar as appealed from, on the law, and that branch ofthe motion of the defendants third-party plaintiffs which was for conditional summary judgmenton the third-party cause of action asserted by the defendant third-party plaintiff E.W. HowellConstruction for contractual indemnification is granted; and it is further,[*2]
Ordered that the order is affirmed insofar ascross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants third-party plaintiffs.
This action arises out of injuries allegedly sustained by the plaintiff in a constructionaccident that occurred on property owned by the defendant third-party plaintiff Half HollowHills School District (Candlewood School) (hereinafter the owner). The owner had hired thedefendant third-party plaintiff E.W. Howell Construction (hereinafter the general contractor) toact as general contractor for the construction project. The general contractor, in turn, hired thethird-party defendant, Maryland Fabricators, Inc. (hereinafter the subcontractor), to furnish anderect structural steel for the project.
On June 6, 2003 the plaintiff, an ironworker employed by the subcontractor, was using aconnecting bar to pry one end of a beam into place on a column when the end of the beamsuddenly dropped about four feet, causing him to lose his balance and fall approximately 20 feetto the ground.
The plaintiff commenced this action against the owner and the general contractor to recoverdamages for personal injuries, alleging common-law negligence and violations of Labor Law§§ 200, 240 (1) and § 241 (6). The owner and general contractor commenceda third-party action against the subcontractor asserting, inter alia, causes of action to recoverdamages for contractual indemnification and to recover damages for breach of contract toprocure primary liability insurance.
At issue on this appeal and cross appeal are the determinations of the Supreme Courtgranting the owner and the general contractor partial summary judgment on their third-partycause of action to recover damages from the subcontractor for breach of contract to procureprimary liability insurance, granting the owner conditional summary judgment on its third-partycause of action against the subcontractor for contractual indemnification, and denying thegeneral contractor conditional summary judgment on its third-party cause of action against thesubcontractor for contractual indemnification.
The Supreme Court erred in denying the general contractor conditional summary judgmenton its third-party cause of action against the subcontractor for contractual indemnification.However, the Supreme Court properly granted the owner conditional summary judgment on itsthird-party cause of action against the subcontractor for contractual indemnification.
The owner and general contractor demonstrated, prima facie, that the plaintiff's allegedinjuries, if any, were sustained as a result of the methods or materials used in the steel erectionwork, rather than as a result of a dangerous condition at the site, and that neither the owner northe general contractor exercised supervisory control over the steel erection work. Contrary to theSupreme Court's conclusion, the fact that the general contractor exercised general duties tooversee work and to ensure compliance with safety regulations did not raise a triable issue of factas to whether it was negligent, and therefore not entitled to contractual indemnification (see McLeod v Corporation of PresidingBishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796 [2007]; Peay v New York City School Constr.Auth., 35 AD3d 566, 567 [2006]; Warnitz v Liro Group, 254 AD2d 411[1998]). The plaintiff acknowledged that at the time of the accident he was following theinstructions and direction of his foreman. There is no evidence, other than speculation, that theowner or general contractor was negligent, or that either one directed, controlled, or supervisedthe manner in which [*3]the plaintiff performed his work orsupplied the materials or tools used by the plaintiff. Moreover, the subcontractor's "mere hope"that discovery would yield material and relevant evidence was not a ground to deny summaryjudgment (Giraldo v Morrisey, 63AD3d 784, 785 [2009]; see LKEFamily Ltd. Partnership v Gillen Living Trust, 59 AD3d 602 [2009]; Board of Mgrs. of Park RegentCondominium v Park Regent Unit Owners Assoc., 58 AD3d 589 [2009]).
Further, the subcontractor violated the insurance procurement clause by failing to secureprimary liability insurance in the stated amount, so that the Supreme Court properly grantedpartial summary judgment against it as the third-party cause of action to recover damages forbreach of contract.
The subcontractor's remaining contentions are without merit or need not be addressed inlight of our determination. Covello, J.P., Santucci, Chambers and Lott, JJ., concur.