DAVIS v. Tom Howard Construction, Inc., Defendant-Respondent.  (Appeal No. 1.) (2008)

Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by Eric Davis (plaintiff) when he fell from a ladder during the construction of a building owned by defendants Martin Brunswick and Marcelline Brunswick.   At the time of the accident, plaintiff was employed by a subcontractor hired by defendant Tom Howard Construction, Inc. (Howard Construction), the general contractor.   We conclude with respect to the order in appeal No. 1 that Supreme Court properly denied plaintiffs' motion seeking partial summary judgment on liability on the Labor Law § 240(1) cause of action and that part of the cross motion of the Brunswicks seeking summary judgment dismissing that cause of action against them.   There is an issue of fact on the record before us “whether the [ladder] failed to provide proper protection, thereby precipitating plaintiff's fall, or whether plaintiff simply lost his balance and fell, taking the ladder with him” (Spenard v. Gregware Gen. Contr., 248 A.D.2d 868, 870, 669 N.Y.S.2d 772;  see Khan v. Convention Overlook, 232 A.D.2d 529, 648 N.Y.S.2d 946;  Xirakis v. 1115 Fifth Ave. Corp., 226 A.D.2d 452, 453, 641 N.Y.S.2d 45).   The court also properly denied that part of the cross motion of the Brunswicks seeking summary judgment on their cross claim for indemnification against Howard Construction.   Even assuming, arguendo, that the amended answer of the Brunswicks may be deemed to assert a cross claim for contractual indemnification, we conclude that their contract with Howard Construction contains no provision for contractual indemnification (see Baun v. Project Orange Assoc., L.P., 26 A.D.3d 831, 835, 809 N.Y.S.2d 703).   We further conclude that the Brunswicks failed to meet their burden of establishing their entitlement to common-law indemnification (see Perri v. Gilbert Johnson Enters., Ltd., 14 A.D.3d 681, 685, 790 N.Y.S.2d 25).

Finally, we conclude with respect to the order in appeal No. 2 that the court properly denied the motion of the Brunswicks seeking leave to renew that part of their cross motion seeking indemnification.   The court properly determined that they “fail[ed] to present sufficient new evidence” in support of their motion (see generally McNerney v. Fundalinski, 48 A.D.3d 1256, 851 N.Y.S.2d 813).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: