Opinion
April 1, 1971
Appeal from the Oneida Special Term.
Present — Del Vecchio, J.P., Marsh, Gabrielli, Moule and Henry, JJ.
Order unanimously reversed, with costs, motion granted and third-party complaint dismissed. Memorandum: Actions grounded in negligence have been brought by an employee and the representative of a deceased employee of a general contractor against subcontractors who were performing the excavation work at a school site. The general contractor was engaged in the construction of a school building where, because of the collapse of an excavation on the job site, one of the employees was seriously injured and the other died as the result of the injuries he sustained. The complaints allege that defendants were negligent in failing to provide adequate piling and bracing in the trench, failing to warn the employees of dangers reasonably to be apprehended, carelessly excavating the trench, failing to take preventive measures, failing to place properly the excavated materials and failing to comply with the Labor Law and regulations of the State Board of Standards and Appeals. It is alleged in the third-party complaints against the general contractor that the third-party defendant was exclusively in charge of and controlled all details of the work performed by third-party plaintiffs and that the injuries were caused by third-party defendant's primary active negligence. In order to permit a third-party complaint to stand, the original complaint must be broad enough to be interpreted as including an allegation of passive negligence on the part of a defendant. "Conversely, where the defendant is alleged to be guilty only of active as distinguished from passive negligence, impleader is improper as a matter of law". ( Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447, 455.) "Acts of omission constitute active negligence as well as acts of commission" ( Bush Term. Bldg. Co. v. Luckenbach S.S. Co., 9 N.Y.2d 426, 430) and where a defendant is charged with failing to give any notice or warning of danger, passive negligence does not follow ( Gingeresky v. Gifford-Wood Co., 14 A.D.2d 623; see, also, Coffey v. Flower City Carting Excavating Co., 2 A.D.2d 191, affd. 2 N.Y.2d 898). Furthermore, where there are claimed violations of the Labor Law and implementing rules of the Board of Standards and Appeals, such wrongdoing is stamped as active negligence ( Rufo v. Orlando, 286 App. Div. 88, affd. 309 N.Y. 345). In sum, if none of the allegations of a complaint can be construed as charging defendant with liability without actual fault, defendant may not seek recovery over from a third party ( La Rosa v. Furhmann Co., 34 A.D.2d 881), and since none of the allegations herein can be construed as charging defendants with liability without actual fault on their part, it therefore follows that defendants' claim-over must fail. As regards any claim-over for indemnity, we are persuaded to follow the result reached and rationale adopted in La Rosa (p. 882), wherein it was succinctly stated that "the allegations of the complaint and the third-party complaint are mutually exclusive. The third-party complaint alleges acts of negligence on the part of appellant and further alleges that plaintiff's injury was caused solely by appellant's primary, active and affirmative negligence. The allegations amount to a complete defense by defendant to the original complaint and if established would relieve it of any liability to plaintiff". Hence, a claim-over for indemnity is insufficient where the allegations would, if established, preclude liability on the part of the one asserting it. ( Beckerman v. Walter J. Munro, Inc., 25 A.D.2d 448.) The third-party complaint should, therefore, be dismissed.