Opinion
CA 03-00631
October 2, 2003.
Appeal from an order of Supreme Court, Niagara County (Fricano, J.), entered February 12, 2002, which granted the motion of defendant Centennial Development, Ltd. for partial summary judgment seeking common-law indemnification from defendant Robert Zulick, individually and doing business as J W Cleaning.
O'SHEA, REYNOLDS CUMMINGS, BUFFALO (MICHELLE M. PARKER OF COUNSEL), FOR DEFENDANT-APPELLANT.
GIBSON, McASKILL CROSBY, LLP, BUFFALO (PAULETTE E. ROSS OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: GREEN, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is denied.
Memorandum:
Supreme Court erred in granting the motion of defendant Centennial Development, Ltd. (Centennial) for partial summary judgment seeking common-law indemnification from defendant Robert Zulick, individually and doing business as J W Cleaning. We previously held that Centennial, the owner of the building where plaintiff was injured when he fell while cleaning exterior windows, is liable to plaintiff under Labor Law 240(1) ( see Harzewski v Centennial Dev., 270 A.D.2d 888). However, Centennial failed to establish as a matter of law that Zulick, a subcontractor, actually supervised, directed or controlled plaintiff's work ( see Delaney v Speigel Assoc., 225 A.D.2d 1102, 1003). Consequently, we reverse the order and deny Centennial's motion.