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Supreme Court, Appellate Division, First Department, New York.

Norman CROUSE, Plaintiff, v. HELLMAN CONSTRUCTION CO., INC., et al., Defendants.

Hellman Construction Co., Inc., Third-Party Plaintiff-Respondent, v. Schroder Brothers Co., Inc., Third-Party Defendant-Appellant.

TDX Construction Corporation, Fourth-Party Plaintiff-Respondent, v. Hellman Construction Co., Inc., et al., Fourth-Party Defendants, Schroder Brothers Co., Inc., Fourth-Party Defendant-Appellant.

Decided: March 29, 2007

MAZZARELLI, J.P., WILLIAMS, GONZALEZ, CATTERSON, KAVANAGH, JJ. Law Office of John P. Humphreys, New York (Ivonne Golborne of counsel), for appellant. Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for Hellman Construction Co. Inc., respondent. Lustig & Brown, LLP, New York (Randolph E. Sarnacki of counsel), for TDX Construction Corporation, respondent.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered on or about February 3, 2006, which granted defendant/third-party plaintiff subcontractor Hellman's motion for summary judgment on its cause of action for contractual indemnification against third-party defendant sub-subcontractor Schroder, and denied Schroder's cross motion for summary judgment dismissing Hellman's third-party complaint and defendant construction manager TDX's cross claims against it, unanimously affirmed, without costs.

 No issue of fact exists as to Hellman's negligence, the deposition testimony demonstrating that Hellman did not exercise any supervisory control over plaintiff's work, that Schroder, plaintiff's employer, did exercise such control, and that TDX was responsible for cleanup of the debris that allegedly caused plaintiff to fall (see O'Sullivan v. IDI Constr. Co., Inc., 28 A.D.3d 225, 226-227, 813 N.Y.S.2d 373 [2006], affd. 7 N.Y.3d 805, 822 N.Y.S.2d 745, 855 N.E.2d 1159 [2006];  Conforti v. Bovis Lend Lease LMB, Inc., 37 A.D.3d 235, 829 N.Y.S.2d 498 [2007] ).   Testimony that Hellman's employee inspected the site from time to time does not raise an issue of fact as to either Hellman's supervision or control (see Cahill v. Triborough Bridge & Tunnel Auth., 31 A.D.3d 347, 350, 819 N.Y.S.2d 732 [2006] ) or constructive notice of the condition, where there is no evidence as to how long the debris was present, Hellman's employee did not inspect the area every day, and the debris could have been produced only seconds before the accident (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986];  Colozzo v. National Ctr. Found., Inc., 30 A.D.3d 251, 252, 817 N.Y.S.2d 256 [2006] ).   Since Hellman was not negligent, Schroder's agreement to indemnify it is enforceable under General Obligations Law § 5-322.1 even though the agreement does not limit the obligation to what the law allows (see Colozzo, id.;  Cavanaugh v. 4518 Assoc., 9 A.D.3d 14, 18, 776 N.Y.S.2d 260 [2004];  Mahoney v. Turner Constr. Co., 37 A.D.3d 377, 379-80, 831 N.Y.S.2d 47 [2007] ).   An issue of fact as to Schroder's obligation to indemnify TDX is raised by Schroder's agreement to indemnify Hellman, which covered not only Hellman but also Hellman's “affiliates,” and Schroder's purchase order with Hellman, which refers to bid documents that require all subcontractors to indemnify TDX. Issues of fact also exist as to TDX's negligence in cleaning up debris.   We have considered Schroder's other arguments and find them unavailing.