PUCKETT v. COUNTY OF ERIE (1999)

Supreme Court properly granted the cross motion of third-party defendant, Collana Brothers Construction Company, Inc. (Collana), seeking summary judgment on its cross claim for common-law and contractual indemnification against defendant Donald J. Braasch Construction, Inc. (Braasch).   Plaintiffs commenced this action to recover damages for injuries sustained by Robert A. Puckett (plaintiff), an employee of Collana, in an accident at a construction site while on loan to Braasch as a crane operator (see, Puckett v. County of Erie [appeal No. 1], 262 A.D.2d 964, 693 N.Y.S.2d 780 [decided herewith];  [appeal No. 2], 262 A.D.2d 966, 691 N.Y.S.2d 801 [decided herewith]).   Collana met its initial burden by establishing that its liability is vicarious, and Braasch failed to raise an issue of fact.   We reject Braasch's contention that our determination in Puckett v. County of Erie ( [appeal No. 2] 244 A.D.2d 865, 665 N.Y.S.2d 236) is the law of the case (see, Matter of Local 345 of Retail Store Empls. Union [Heinrich Motors], 96 A.D.2d 182, 186, 468 N.Y.S.2d 240, revd. on other grounds 63 N.Y.2d 985, 483 N.Y.S.2d 997, 473 N.E.2d 247).   On that appeal, we were unable to determine from the record whether control of plaintiff had been surrendered by Collana and assumed by Braasch.   The record now establishes that Braasch was exercising exclusive control and supervision over plaintiff at the time of the accident.   The court also properly granted the cross motion of defendants County of Erie, Buffalo Bills, Inc. and A.D.F. Construction Corporation for summary judgment on their cross claim for common-law and contractual indemnification against Braasch.   Because liability has not been determined (see, Puckett v. County of Erie [appeal No. 1], supra;  [appeal No. 2], supra ), we modify the order by providing that the cross motion is granted conditionally upon a determination of liability (see, Delaney v. Spiegel Assocs., 225 A.D.2d 1102, 1103-1104, 639 N.Y.S.2d 637).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: