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
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.