HOELLE v. NEW YORK EQUITIES COMPANY (1999)

Order, Supreme Court, New York County (Emily Goodman, J.), entered August 14, 1997, which, to the extent appealed from as limited by appellants' brief, granted third-party plaintiff's motion for summary judgment as to the entire third-party complaint against appellants, unanimously modified, on the law, to deny the motion insofar as it relates to the second and third causes of action in the third-party complaint, and otherwise affirmed, without costs.

 The IAS court properly granted third-party plaintiff general contractor's motion for summary judgment on its first cause of action for contractual indemnification against appellant Ess & Vee Acoustical Contractors.   The indemnification provision in the subcontract requires that the subcontractor indemnify the general contractor for any claims arising out of the subcontractor's work.   Here, while performing ceiling work for the subcontractor, plaintiff was injured when the scaffold he was working on fell into an opening on a raised platform.   Since this injury plainly occurred during the course of the subcontractor's work, and there is no evidence that the general contractor was itself negligent, the general contractor is entitled to summary judgment on its contractual indemnification claim (see, Buccini v. 1568 Broadway Assocs., 250 A.D.2d 466, 673 N.Y.S.2d 398, 400;  see also, Warnitz v. Liro Group Ltd., 254 A.D.2d 411, 678 N.Y.S.2d 910, 910-911).

 No triable issue of fact exists as to the general contractor's alleged negligence.   As this Court stated in Buccini v. 1568 Broadway Assocs., supra at 401, “[t]he general duty to supervise the work and ensure compliance with safety regulations does not amount to supervision and control of the work site such that the supervisory entity would be liable for the negligence of the contractor who performs the day-to-day operations.”   In this case, the record establishes that the general contractor had no direct supervision and control over the manner and method of the various subcontractor's work, but merely exercised general supervisory responsibilities over the entire project.   In these circumstances, the general contractor may not be held liable and its motion for summary judgment on its contractual indemnification claim was properly granted (see, Martin v. Paisner, 253 A.D.2d 798, 677 N.Y.S.2d 502;  Buccini v. 1568 Broadway Assocs., supra at 401;  cf. Samuel v. General Cinema Theaters, 254 A.D.2d 85, 678 N.Y.S.2d 615).

 It was, however, error for the motion court to have reached the second and third causes of action in Structure Tone's third-party complaint, the motion before the court having been expressly limited to the cause of action for contractual indemnification (see, Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429-30, 654 N.Y.S.2d 335, 676 N.E.2d 1178).   We have considered appellant's remaining arguments and find them to be unavailing.

MEMORANDUM DECISION.