SMITH v. Bravo Demolition Corp., Defendant-Appellant.

Reset A A Font size: Print

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

Teddy SMITH, et al., Plaintiffs, v. 21 WEST LLC LIMITED LIABILITY COMPANY, Defendant-Respondent, Bravo Demolition Corp., Defendant-Appellant.

Decided: May 11, 2006

BUCKLEY, P.J., SAXE, NARDELLI, GONZALEZ, CATTERSON, JJ. Melito & Adolfsen P.C., New York (Louis G. Adolfsen of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Debra A. Adler of counsel), for respondent.

Order, Supreme Court, New York County (Carol E. Huff, J.), entered July 14, 2005, which, after a framed issue hearing, inter alia, denied defendant Bravo's motion for summary judgment dismissing defendant 21 West's cross claims for contribution and common-law and contractual indemnification, unanimously affirmed, with costs.

 Bravo failed to establish as a matter of law that plaintiff was its employee or that it was working as a joint venture with a third-party corporation not sued herein.   Thus, 21 West's cross claims for contribution and indemnification were not barred by Workers' Compensation Law § 11 (see Cruz v. HSS Props. Corp. 309 A.D.2d 720, 766 N.Y.S.2d 835 [2003];  Mitchell v. A.F. Roosevelt Ave. Corp., 207 A.D.2d 388, 615 N.Y.S.2d 707 [1994] ).

 Moreover, Bravo failed to demonstrate as a matter of law that it had insufficient control and supervision over the work to be held liable in negligence.   Nor did it demonstrate any supervision and control of 21 West, thereby precluding it from summary judgment dismissing 21 West's claims for contribution and indemnification (see Fraioli v. St. Joseph's Seminary of City of N.Y., 1 A.D.3d 280, 767 N.Y.S.2d 586 [2003] ).   Additionally, the parties' objective conduct clearly manifested an intent to be bound by the unsigned contract, which had been negotiated by representatives of both parties.   Bravo had commenced work under the contract and obtained an insurance certificate as required therein, thus precluding dismissal of 21 West's cross claims for contractual indemnification (see Brown Bros. Elec. Contrs. v. Beam Constr. Corp., 41 N.Y.2d 397, 393 N.Y.S.2d 350, 361 N.E.2d 999 [1977] ).