BOSHNAKOV v. HIGGINS KIEFFER INC (1998)

 Supreme Court properly granted that part of the motion of defendants and third-party plaintiffs Higgins-Kieffer, Inc. (Higgins) and Eden Central School District, a/k/a Central School District No. 1 (defendants), seeking summary judgment on common-law indemnification from third-party defendant, Color Technics Painting Corp. (Color Technics).   Vancho Boshnakov (plaintiff) was injured during the course of his employment with Color Technics when he fell from a mechanical manlift while painting in a school auditorium.   Although defendants had project superintendents on the worksite who had general supervisory powers, including the authority to report safety violations, there is no proof that defendants actually supervised, directed or controlled plaintiff's work as a painter (see, Newell v. Almeter-Barry Constr. Mgt., 245 A.D.2d 1081, 667 N.Y.S.2d 551;  DePillo v. Greater Auburn Land Co., 236 A.D.2d 863, 653 N.Y.S.2d 776;  see also, Enderlin v. Hebert Indus. Insulation, 224 A.D.2d 1020, 638 N.Y.S.2d 262;  cf., Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 670 N.Y.S.2d 816, 693 N.E.2d 1068).

 The court also properly granted that part of defendants' motion seeking summary judgment on the third-party claim of Higgins for contractual indemnification from Color Technics (see, Delaney v. Spiegel Assocs., 225 A.D.2d 1102, 1103-1104, 639 N.Y.S.2d 637).   Because the court had granted plaintiffs' motion for partial summary judgment against Color Technics on liability under Labor Law § 240(1), there was no need for the court to condition summary judgment to Higgins on a finding of liability (cf., Martinez v. Fiore, 90 A.D.2d 483, 454 N.Y.S.2d 475).

Order unanimously affirmed with costs.

MEMORANDUM: