SHEEHAN v. << (1999)

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered January 25, 1999, which, inter alia, granted plaintiff's motion for partial summary judgment against defendants on the issue of liability on his claims under Labor Law §§ 240(1) and 241(6), and denied defendants' cross motion for summary judgment against third-party defendant Cosner Construction Corp. (“Cosner”) insofar as it sought contractual indemnification on behalf of both defendants, and insofar as it sought common law indemnification on behalf of defendant Gotham Construction Corp. (“Gotham”), unanimously modified, on the law, to grant the motion of defendant/third-party plaintiff Fordham University (“Fordham”) for summary judgment insofar as it seeks contractual indemnification against Cosner, and otherwise affirmed, without costs.

 Plaintiff's testimony, corroborated by a co-worker, established a prima facie case under Labor Law §§ 240(1) and 241(6), notwithstanding the fact that the two workers may have differed over whether the construction debris that struck plaintiff fell from the fourth floor or second floor level of the elevator shaft in which plaintiff was working (see, Gambino v. William L. Crow Constr. Co., 238 A.D.2d 190, 191, 655 N.Y.S.2d 537).   Material issues of fact do exist, however, concerning the extent to which Gotham, the general contractor, retained control over the worksite.   Accordingly, Gotham's motion for summary judgment against Cosner, the subcontractor and plaintiff's employer, under theories of common-law and contractual indemnification, was properly denied (see, Quinn v. Tishman Constr. Corp. of New York, 249 A.D.2d 143, 671 N.Y.S.2d 245).   In this latter regard we note that the agreement between Gotham and Cosner impermissibly attempted to shift complete liability to Cosner, regardless of who or what caused the injury, thereby running afoul of General Obligations Law § 5-322.1 (see, Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 658 N.Y.S.2d 903, 680 N.E.2d 1200).   We modify only to grant the motion of Fordham for summary judgment upon its contractual indemnification claim against Cosner since it is undisputed that there was no actual negligence on Fordham's part (see, Brown v. Two Exchange Plaza Partners, 76 N.Y.2d 172, 179, 556 N.Y.S.2d 991, 556 N.E.2d 430).

MEMORANDUM DECISION.