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

Daryl C. NEWELL, et al., Plaintiffs, v. ALMETER-BARRY CONSTRUCTION MANAGEMENT, INC., et al., Defendants.

ALMETER-BARRY CONSTRUCTION MANAGEMENT, INC., Third-Party Plaintiff-Appellant, v. GYPSUM SYSTEMS, INC., Third-Party Defendant-Respondent

Decided: December 31, 1997

Before DENMAN, P.J., and LAWTON, WISNER, BALIO and BOEHM, JJ. Law Offices of Charles G. Di Pasquale, Buffalo, for Defendant Erie Co. Industrial Dev. and Defendant-Appellant Servotronics, Inc. Brown & Kelly, L.L.P. by Kathleen Smith, Buffalo, for Defendant-Third-Party Plaintiff-Appellant Almeter-Barry Const. Management, Inc. Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Buffalo, for Plaintiffs-Respondents Newell. Block & Colucci, P.C. by D. Patrick Gallagher, Buffalo, for Third-Party Defendant-Respondent Gypsum Systems, Inc.

Supreme Court erred in denying the cross motion of third-party plaintiff, Almeter-Barry Construction Management, Inc. (Almeter-Barry), for summary judgment in its action against third-party defendant, Gypsum Systems, Inc. (Gypsum), for contractual and common-law indemnification.   Almeter-Barry met its initial burden on the cross motion by submitting evidence that it did not direct, control or supervise the manner or method of work performed by Gypsum employees;  that Gypsum directed and supervised the work of its employees (see, Riley v. Stickl Constr. Co., 242 A.D.2d 936, 662 N.Y.S.2d 660;  Norton v. Bell & Sons, 237 A.D.2d 928, 654 N.Y.S.2d 512;  Sikorski v. Springbrook Fire Dist. of Town of Elma, 225 A.D.2d 1041, 639 N.Y.S.2d 226);  and that its liability to plaintiffs, if any, exists by reason of its status as a construction manager and not by reason of active misconduct on its part (see, Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 179, 556 N.Y.S.2d 991, 556 N.E.2d 430;  Conley v. Salt City Energy Venture, 234 A.D.2d 909, 910, 651 N.Y.S.2d 790;  Delaney v. Spiegel Assocs., 225 A.D.2d 1102, 1103-1104, 639 N.Y.S.2d 637).   Daryl C. Newell (plaintiff), an employee of Gypsum, was injured while taping drywall;  a stilt attached to plaintiff's leg became entangled in an electrical cord, and plaintiff fell.   Even assuming, arguendo, that a factual issue exists whether the electrical cord belonged to Gypsum or to another contractor, Gypsum failed to establish that Almeter-Barry was negligent in failing to direct the placement of electrical cords.   There is no evidence that Almeter-Barry directed or supervised the work of any other contractor, and the general authority of Almeter-Barry to coordinate the work of the various contractors, inspect the work and enforce safety standards is not a sufficient basis for the imposition of liability (see, DePillo v. Greater Auburn Land Co., 236 A.D.2d 863, 653 N.Y.S.2d 776;  Malecki v. Wal-Mart Stores, 222 A.D.2d 1010, 635 N.Y.S.2d 888;  Flick v. Eastman Kodak Co., 222 A.D.2d 1033, 636 N.Y.S.2d 528).

Order insofar as appealed from unanimously reversed on the law with costs to third-party plaintiff and cross motion granted.


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