GUTIERREZ v. 451 LEXINGTON REALTY LLC (2020)

The court properly granted third-party plaintiffs' motion.  Vortex signed an agreement in connection with the construction work to be done at the site, which clearly and unambiguously obligated it to defend and indemnify third-party plaintiffs for any personal injury claims resulting from the work under the subcontract.  Flintlock was not at the scene at the time of plaintiff's accident, and both third-party plaintiffs' liability to plaintiff was strictly vicarious (see Gutierrez v. 451 Lexington Realty LLC, 156 A.D.3d 418, 66 N.Y.S.3d 463 [1st Dept. 2017]).  The evidence further demonstrated that third-party defendants were negligent in their supervisory control over the means and methods of the work which resulted in plaintiff's injuries (id.;  see Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317–318, 445 N.Y.S.2d 127, 429 N.E.2d 805 [1981];  Maddox v. Tishman Constr. Corp., 138 A.D.3d 646, 30 N.Y.S.3d 93 [1st Dept. 2016];  Balbuena v. New York Stock Exch., Inc., 49 A.D.3d 374, 376, 853 N.Y.S.2d 330 [1st Dept. 2008], lv denied 14 N.Y.3d 709, 2010 WL 1794943 [2010]).

The court also properly declined to dismiss the third-party complaint as against Sigma.  The evidence shows that Vortex and Sigma were interchangeable, as there existed overlap in ownership, as well as common use of office space, equipment, and employees, including plaintiff and his supervisor, who were employed on this job (see Forum Ins. Co. v. Texarkoma Transp. Co., 229 A.D.2d 341, 645 N.Y.S.2d 786 [1st Dept. 1996]).