ROSENBERG v. <<

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

Goldie ROSENBERG, et al., Plaintiffs, v.

BETH ISRAEL MEDICAL CENTER, Defendant/Third-Party Plaintiff-Respondent, v. MARRIOTT CORPORATION, Third-Party Defendant-Appellant.

Decided: February 19, 1998

Before SULLIVAN, J.P., and WALLACH, RUBIN, WILLIAMS and TOM, JJ. Daniel A. Cohen, for Beth Israel Medical Center. Paul F. Clark, for Marriott Corp.

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered October 4, 1996, after a nonjury trial, which granted third-party plaintiff Beth Israel Medical Center complete indemnification in the amount of $100,000 against third-party defendant Marriott Corporation, unanimously affirmed, with costs.

 Since the trial court's resolution of the factual issues herein were supported by the credible evidence and permissible inferences, the determination should not be disturbed (see, Soam Corp. v. Trane Co., 202 A.D.2d 162, 608 N.Y.S.2d 177, lv. denied 83 N.Y.2d 758, 615 N.Y.S.2d 875, 639 N.E.2d 416).   The contract provisions and testimony of both parties' witnesses established that the supervised housekeeping employees were in Marriott's special employ, inasmuch as Marriott controlled and directed “the manner, details and ultimate result of the employee's work” (Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 558, 578 N.Y.S.2d 106, 585 N.E.2d 355).   The trial court also properly found that the executed written contract had been modified by the parties' conduct to include ice and snow removal as part of Marriott's housekeeping responsibilities (see, Beacon Term. Corp. v. Chemprene, Inc., 75 A.D.2d 350, 354, 429 N.Y.S.2d 715, lv. denied 51 N.Y.2d 706, 433 N.Y.S.2d 1026, 413 N.E.2d 369).   The trial court thus properly concluded that Marriott was responsible under the indemnification clause for the negligent acts and omissions of Marriott's special employees.

 Since the pleadings gave “notice of the transactions relied on and the material elements of the cause of action” (see, Jerry v. Borden Co., 45 A.D.2d 344, 347, 358 N.Y.S.2d 426), pleading with particularity of special employee status of the workers was not required.   In any event, given that all aspects of this issue were vigorously litigated, there was no prejudice to Marriott and the court could have conformed the pleadings to the proof, if necessary (see, Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90).

We have considered appellant's remaining arguments and find them to be without merit.

MEMORANDUM DECISION.