KVANDAL v. WESTMINSTER PRESBYTERIAN SOCIETY OF BUFFALO INC

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

Kurtis K. KVANDAL and Mary Margaret Kvandal, Respondents, v. WESTMINSTER PRESBYTERIAN SOCIETY OF BUFFALO, INC., Appellant.

WESTMINSTER PRESBYTERIAN SOCIETY OF BUFFALO, INC., Third-Party Plaintiff-Respondent-Appellant, v. LEHIGH CONSTRUCTION GROUP, INC., Third-party Defendant-Appellant-Respondent.

Decided: April 25, 1997

Before GREEN, J.P., and LAWTON, CALLAHAN, BOEHM and FALLON, JJ. Edward C. Cosgrove, Buffalo, for Third-Party Defendant-Appellant-Respondent-Lehigh Construction. Hodgson, Russ, Andrews, Woods and Goodyear by R. Anthony Rupp, Buffalo, for Third-Party Plaintiff-Respondent-Appellant-Westminster. Morris, Cantor and Barnes by Michael Riehler, Buffalo, for Planintffs-Respondents-Kvandal.

 Supreme Court should have granted that part of the cross motion of third-party defendant, Lehigh Construction Group, Inc. (Lehigh), for summary judgment dismissing the Labor Law § 240(1) cause of action.   Kurtis K. Kvandal (plaintiff), an employee of Lehigh, was injured while installing drywall at a construction project owned by defendant, Westminster Presbyterian Society of Buffalo, Inc. (Westminster).   Plaintiff stepped off the last rung of a ladder and onto a nail that had been left on the floor.   Because plaintiff's injuries arose from the usual and ordinary dangers of a construction site rather than the extraordinary elevation-related risk envisioned by Labor Law § 240(1), we modify the order by dismissing that cause of action (see, White v. Farash Corp., 224 A.D.2d 978, 637 N.Y.S.2d 558;  Malecki v. Wal-Mart Stores, 222 A.D.2d 1010, 635 N.Y.S.2d 888;  see also, Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 634 N.Y.S.2d 35, 657 N.E.2d 1318, rearg. denied 87 N.Y.2d 969, 642 N.Y.S.2d 197, 664 N.E.2d 1260;  Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561, 606 N.Y.S.2d 127, 626 N.E.2d 912).

 The court also should have granted in part that part of Lehigh's cross motion to dismiss the third-party complaint as barred by the anti-subrogation rule.   The record establishes that the construction contract between Westminster and Lehigh contained a standard indemnification clause in favor of Westminster.   The contract required that Lehigh obtain liability insurance coverage naming Westminster as an additional insured.   Lehigh obtained such coverage through a policy issued by Maryland Casualty Company (Maryland).   Because Maryland, in commencing the third-party action on behalf of Westminster, sought to be subrogated to Westminster's claim against Lehigh, the third-party complaint is barred by the anti subrogation rule up to the amount of the Maryland policy limits (see, Hailey v. New York State Elec. & Gas Corp., 214 A.D.2d 986, 626 N.Y.S.2d 912).   Because the third-party complaint seeks an amount in excess of the policy limits, it should be dismissed only insofar as it requests contribution and indemnification from Lehigh for the amount covered by the Maryland policy (see, Pierce v. Syracuse Univ., 236 A.D.2d 870, 653 N.Y.S.2d 753).   Consequently, we further modify the order by dismissing the third-party complaint insofar as it seeks contribution and indemnification up to the amount of the Maryland policy limits.

 We further conclude that the court properly denied the motion of Westminster for summary judgment on its third-party complaint based on common-law and contractual indemnification.   No determination has yet been made whether Westminster is liable to plaintiffs or whether plaintiffs' damages are in excess of the Maryland policy limits.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: