Opinion
June 19, 1995
Appeal from the Supreme Court, Kings County (Held, J.).
Ordered that the order is affirmed, with costs.
The plaintiff Richard Bieber was injured in a fall from a scaffold at a construction site. In this action he sought to recover damages, inter alia, pursuant to Labor Law § 240 (1). A settlement was reached with the defendants, the general contractor and the subcontractor. The second third-party defendant D S Carpentry, Inc., of which the injured plaintiff was the president as well as an employee and a shareholder, agreed to a settlement, subject only to the court's determination that the injured plaintiff and his corporate employer were not, "as a matter of law, the same entity". The court so held and we affirm.
Upon the facts as stipulated to by the parties, we agree with the court's finding that the appellant is a distinct legal corporate entity which is not free from vicarious liability for the conceded negligence of its employee. Rather, the court correctly found that the appellant could be liable for contribution and/or indemnification to the defendants to the extent that their damages were attributable to the injured plaintiff's negligence ( see, e.g., Chapel v. Mitchell, 84 N.Y.2d 345; Danaher v. Notafrancesco, 213 A.D.2d 444; Kendall v. Venture Dev., 206 A.D.2d 797; McNair v. Morris Ave. Assocs., 203 A.D.2d 433; Aragon v. 233 W. 21st St., 201 A.D.2d 353; Desrosiers v Barry, Bette Led Duke, 189 A.D.2d 947; Brown v. Sagamore Hotel, 184 A.D.2d 47; Allman v. Ciminelli Constr. Co., 184 A.D.2d 1022; Torrillo v. Kiperman, 183 A.D.2d 821). Contrary to the appellant's contentions, Rose v. Mount Ebo Assocs. ( 170 A.D.2d 766) is clearly distinguishable upon the ground that in that case the injured employee was essentially self-employed and as a result the third-party action was dismissed since any indemnification or contribution by the unincorporated third-party defendant employer would have effectively reduced the recovery of the injured employee in violation of the policies underlying the Labor Law. In the instant matter, the injured plaintiff and his employer are distinct legal entities and as such contribution and/or indemnification by the employer is not precluded since the injured plaintiff is not being penalized for his own culpable conduct. Therefore, the settlement was properly enforced. Miller, J.P., Thompson, Friedmann and Florio, JJ., concur.