BAEZ v. CONTRACTING INC

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

Nelson BAEZ, Plaintiff, v. R & R CONTRACTING, INC., et al., Defendants-Appellants,

East 175th Street Housing Development Fund Corporation, et al., Third-Party Plaintiffs-Appellants, v. Parkset Plumbing Co., Inc., Third-Party Defendant-Respondent. [And Another Action]

Decided: October 18, 2001

WALLACH, J.P., RUBIN, BUCKLEY, FRIEDMAN and MARLOW, JJ. Raymond F. Slattery,Lisa D'Ateno, for Defendants-Appellants. Mark R. Aledort, for Third-Party Defendant-Respondent.

Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered January 19, 2001, which granted the cross motion of defendants/ third-party plaintiffs 240 East 175th Street Housing Development Fund Corporation and Mount Hope Housing Co., Inc. for summary judgment against defendant R & R Contracting, and granted the motion of third-party defendant Parkset Plumbing for summary judgment dismissing the third-party complaint and cross claims against it, unanimously affirmed, without costs.

 Plaintiff seeks damages for injuries sustained when, while working on a construction site in the employ of plumbing subcontractor Parkset Plumbing, a beam fell through the ceiling above him and allegedly struck him.   Since it is clear, as a matter of law, that plaintiff's injury was not the result of any negligence on Parkset's part and did not arise out of or result from Parkset's performance under its subcontract, summary judgment dismissing the third-party complaint and cross claims against Parkset was proper (cf., Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666).   Also correct was the motion court's grant of summary relief in favor of the subject building's owners upon their claims for indemnification against general contractor R & R Contracting, since it is clear that, in contrast to R & R, they had no active control over the construction site (see, Sheehan v. Fordham Univ., 259 A.D.2d 328, 687 N.Y.S.2d 22;  Brink v. Yeshiva Univ., 259 A.D.2d 265, 686 N.Y.S.2d 15).