MILLER v. Daniel Booth, Individually and Doing Business as “D & R Paving,” Wal-Mart Stores, Inc., Wal-Mart Real Estate Business Trust, Defendants-Respondents, et al., Defendants. (2008)

 Plaintiffs commenced this action seeking damages for injuries sustained by Esther L. Miller (plaintiff) when she fell in the parking lot of a Wal-Mart Super Center.   Prior to plaintiff's fall, defendant The Pike Company, Inc. (Pike) was hired to address repairs needed in the parking lot, and Pike in turn hired defendant Daniel Booth, individually and doing business as “D & R Paving” (D & R), to perform the repairs.   Contrary to the contention of Pike, Supreme Court properly denied that part of its motion for summary judgment dismissing the amended complaint and all cross claims against it because there are triable issues of fact whether Pike created or exacerbated the allegedly dangerous condition that caused plaintiff to fall (see generally Church v. Callanan Indus., 99 N.Y.2d 104, 111, 752 N.Y.S.2d 254, 782 N.E.2d 50;   Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 142, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Robertson v. Amherst Paving, 302 A.D.2d 913, 755 N.Y.S.2d 350), and whether Pike “exercised supervisory control” over D & R (Laecca v. New York Univ., 7 A.D.3d 415, 416, 777 N.Y.S.2d 433, lv. denied 3 N.Y.3d 608, 785 N.Y.S.2d 25, 818 N.E.2d 667;  see Wasserman v. City of New York, 267 A.D.2d 151, 700 N.Y.S.2d 17).   Also contrary to the contention of Pike, the court properly denied that part of its motion seeking summary judgment on its cross claim for contractual indemnification against D & R.   Because there are triable issues of fact concerning Pike's negligence (see e.g. Baillie Lbr. Co., L.P. v. A.L. Burke, Inc., 43 A.D.3d 1290, 1291, 842 N.Y.S.2d 818;   Losurdo v. Skyline Assoc., L.P., 24 A.D.3d 1235, 1237, 807 N.Y.S.2d 249), we are unable to determine at this stage of the litigation whether the indemnity provision in the contract between Pike and D & R violates General Obligations Law § 5-322.1 (see generally Mannino v. J.A. Jones Constr. Group, LLC, 16 A.D.3d 235, 236-237, 792 N.Y.S.2d 32;  Potter v. M.A. Bongiovanni, Inc., 271 A.D.2d 918, 919, 707 N.Y.S.2d 689).

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

MEMORANDUM: