COLOZZO v. NATIONAL CENTER FOUNDATION INC (2006)

Judgment, Supreme Court, New York County (Rosalyn Richter, J.), entered November 21, 2005, which, to the extent appealed from as limited by the brief, upon the grant of third-party plaintiff Tishman Construction Corporation's motion for summary judgment upon its claim for contractual indemnification, entitled Tishman to indemnification from third-party defendant Heritage Air Systems for any recovery against Tishman in the main action as well as attorneys' fees expenses, costs and disbursements incurred by Tishman in defending the main action, unanimously affirmed, without costs.

Although on its face, the indemnity provision relied upon by Tishman runs afoul of General Obligations Law § 5-322.1, Tishman may nonetheless enforce it since the evidence established that plaintiff's injuries were not attributable to negligence on its part and that its liability was vicarious and purely statutory (see Brown v. Two Exchange Plaza Partners, 76 N.Y.2d 172, 180, 556 N.Y.S.2d 991, 556 N.E.2d 430 [1990];  Linarello v. City Univ. of New York, 6 A.D.3d 192, 193-194, 774 N.Y.S.2d 517 [2004];  Masciotta v. Morse Diesel Intl., Inc., 303 A.D.2d 309, 311-312, 758 N.Y.S.2d 286 [2003] ).   Tishman demonstrated that it did not exercise supervision or control over the specific work being performed by plaintiff at the time of his accident (see Reilly v. Newireen Assoc., 303 A.D.2d 214, 219, 756 N.Y.S.2d 192 [2003], lv. denied 100 N.Y.2d 508, 764 N.Y.S.2d 235, 795 N.E.2d 1244 [2003] ) and that it had neither actual nor constructive notice of the allegedly unsafe condition (see Mitchell v. New York Univ., 12 A.D.3d 200, 201, 784 N.Y.S.2d 104 [2004] ).   Although Tishman, as construction manager, had responsibility for coordinating and scheduling the trades at the work site, it was not invested with the requisite level of direction and control over the injury-producing work or the relevant attendant circumstances to support the imposition of liability against it on a negligence theory (see De La Rosa v. Philip Morris Mgt. Corp., 303 A.D.2d 190, 192, 757 N.Y.S.2d 527 [2003];  Loiacono v. Lehrer McGovern Bovis, Inc., 270 A.D.2d 464, 704 N.Y.S.2d 658 [2000] ).

We have considered Heritage's remaining arguments and find them unavailing.