NARVAEZ v. [And Other Actions.]

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

Cesar NARVAEZ, et al., Plaintiffs, v. 4518 ASSOCIATES, et al., Defendants-Respondents, Tri-State Demolition, Defendant-Appellant. [And Other Actions.]

Decided: May 14, 1998

Before LERNER, P.J., and ELLERIN, RUBIN and SAXE, JJ. Frank Braunstein, for defendants-respondents. Anthony J. Medico, for defendant-appellant.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered April 4, 1997, which granted defendants-respondents' motion for summary judgment to the extent of directing that defendant-appellant, Tri-State Demolition, defend and indemnify defendants-respondents and pay their attorneys' fees, unanimously affirmed, with costs.

 The indemnification clause in the parties' contract is enforceable since it does not impose an obligation to indemnify for negligence other than that of the indemnitor and its agents (see, Itri Brick & Concrete Corp. v. Aetna Cas., 89 N.Y.2d 786, 793-794, 658 N.Y.S.2d 903, 680 N.E.2d 1200).   Nor is there any question as to whether the indemnitees, defendants-respondents, were actually at fault, for although defendants-respondents' general contractor had a supervisor on hand, who was responsible for general safety at the work site, the record establishes that that supervisor did not control or supervise performance of the work in the course of which plaintiff was injured.   The record in fact demonstrates that said supervisor's suggestion for performance of the work was not followed and that defendant-appellant's foreman and its subcontractor's foreman were solely responsible for direction of work in question (see, Rice v. PCM Development Agency Co., 230 A.D.2d 898, 899-900, 646 N.Y.S.2d 856;  Isnardi v. Genovese Drug Stores, 242 A.D.2d 672, 662 N.Y.S.2d 790;  Seecharran v. 100 West 33rd Street Realty Corp. 198 A.D.2d 121, 122, 603 N.Y.S.2d 308).