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

Martinho ARAUJO, Plaintiff-Respondent, v. EDENWALD CONTRACTING CO., INC., et al., Defendants,

Utilities Unlimited Corp., Defendant-Appellant. U.U.G.G. CORP., etc., Third-Party Plaintiff-Appellant, v. JOHN SOMMESO WELDING CO., INC., Third-Party Defendant-Respondent.

Decided: April 29, 1997

Before MILONAS, J.P., and ELLERIN, NARDELLI and WILLIAMS, JJ. David M. Schwarz, for Plaintiff-Respondent. C. P. DiGiulio, for Defendant-Appellant and Third-Party Plaintiff-Appellant. Lisa M. Capruso, for Third-Party Defendant-Respondent.

Order, Supreme Court, New York County (Norman Ryp, J.), entered July 23, 1996, which, in an action by a laborer to recover for personal injuries, inter alia, denied third-party plaintiff general contractor's motion for summary judgment in its third-party action against plaintiff's employer, a subcontractor, for contractual and common-law indemnification, unanimously affirmed, without costs.

Plaintiff, an employee of the welding subcontractor, was injured when an unsecured plank spanning a construction trench in which new water mains were being installed, shifted and caused him to fall into the trench.   There was deposition testimony that on occasions prior to the accident, plaintiff had used ladders belonging to the general contractor to enter the trench, but that on the day of the accident the ladders had been removed when the general contractor's employees moved their worksite further up the excavation site.   Assuming that the general contractor's allegation is accurate that the record is devoid of evidence that it was exercising any supervisory control over the worksite at the time of the accident, the deposition testimony does raise an issue of fact as to whether, inter alia, the general contractor's practice of allowing members of other trades, and specifically the injured plaintiff and his co-workers, to use its ladders and then removing them when its workers moved to another part of the worksite contributed to the accident, precluding indemnification (see, Mangano v. American Stock Exch., 234 A.D.2d 198, 199-200, 651 N.Y.S.2d 494, 496).   We decline to review plaintiff's argument that he should have been granted summary judgment upon a search of the record of his cause of action under Labor Law § 240 in the absence of a cross appeal.