LAZZARO v. (and a third-party action).

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

Rosario LAZZARO, et al., Plaintiffs, v. MJM INDUSTRIES, INC., Appellant, Gelco Builders, Inc., Respondent, et al., Defendant. (and a third-party action).

Decided: November 26, 2001

GABRIEL M. KRAUSMAN, J.P., WILLIAM D. FRIEDMANN, ANITA R. FLORIO and THOMAS A. ADAMS, JJ. Chesney & Murphy, LLP, Rockville Centre, N.Y. (Lysaght & Russo, P.C. [Michelle S. Russo] of counsel), for appellant.

In an action to recover damages for personal injuries, etc., the defendant MJM Industries, Inc., appeals from so much of an order of the Supreme Court, Kings County (Barron, J.), dated July 11, 2000, as granted that branch of the cross motion of the defendant Gelco Builders, Inc., which was for summary judgment on its cross claims against MJM Industries, Inc., for contractual and common-law indemnification.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

  “While owners and general contractors owe nondelegable duties under the Labor Law to plaintiffs who are employed at their worksites, these defendants can recover in indemnity, either contractual or common-law, from those considered responsible for the accident” (Kennelty v. Darlind Constr., 260 A.D.2d 443, 445-446, 688 N.Y.S.2d 584;  see, Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 556 N.Y.S.2d 991, 556 N.E.2d 430).   Here, the language of the contract between Gelco Builders, Inc. (hereinafter Gelco) and MJM Industries, Inc. (hereinafter MJM) clearly reflects their intention that Gelco be entitled to full contractual indemnification from MJM (see, Drzewinski v. Atlantic Scaffold & Ladder Co., 70 N.Y.2d 774, 521 N.Y.S.2d 216, 515 N.E.2d 902).   While General Obligations Law § 5-322.1 voids any indemnification clause to the extent that a party seeks indemnity for its own acts of negligence (see, Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 658 N.Y.S.2d 903, 680 N.E.2d 1200;  Brown v. Two Exch. Plaza Partners, supra), the Supreme Court correctly found that Gelco was liable to the plaintiff under Labor Law § 240(1) based solely upon its status as the general contractor.   Since there is no evidence that Gelco was negligent or that it directed, controlled, or supervised the manner in which the injured plaintiff performed his work, it is entitled to summary judgment on its cause of action against MJM, its subcontractor, based on the contractual agreement requiring MJM to hold Gelco harmless and indemnify it (see, Kennelty v. Darlind Constr., supra;  Isnardi v. Genovese Drug Stores, 242 A.D.2d 672, 662 N.Y.S.2d 790;  Dawson v. Pavarini Constr. Co., 228 A.D.2d 466, 644 N.Y.S.2d 285).

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