GILHENEY v. SAM DELL SATURN INC (1999)

Supreme Court erred in granting the motion of third-party plaintiff, Sam Dell Saturn, Inc., d/b/a Saturn of Syracuse (Sam Dell Saturn), for a directed verdict in its third-party action for common-law indemnification.   Plaintiff's decedent, an employee of third-party defendant, DiFlorio Mechanical Contractors, Inc. (DiFlorio), fell through a four-foot by four-foot hole in the second story of a building owned by Sam Dell Saturn while engaged in renovations to portions of the building's plumbing system.   The record establishes that the hole was not created as part of the building renovations;  the hole existed when Sam Dell Saturn bought the building and had been utilized by a previous owner to hoist auto parts to the second floor.   Because DiFlorio established that the accident may have resulted from a defective condition of the premises rather than a defect in its materials or methods of work, a triable issue of fact exists whether the liability of Sam Dell Saturn is solely vicarious (see, Brutcher v. Dallas Homes, 237 A.D.2d 876, 656 N.Y.S.2d 991).   Because DiFlorio is entitled to a new trial, we do not reach the evidentiary issue raised on appeal.

Amended judgment insofar as appealed from unanimously reversed on the law with costs, motion denied and new trial granted.

MEMORANDUM: