Opinion
November 14, 1994
Appeal from the Supreme Court, Nassau County (DiNoto, J.).
Ordered that the order is modified, by deleting the portion thereof which granted that branch of the cross-motion of the defendant Brooklyn Hospital-Caledonian Hospital which was for summary judgment against the defendant third-party plaintiff on the issue of contractual indemnity; and as so modified the order is affirmed, insofar as appealed from, without costs or disbursements.
There is no merit to the contention of the defendant third party plaintiff Peco, Inc. (hereinafter Peco) that it was not an "agent" under the Labor Law. Since work which gave rise to the plaintiff's injuries was specifically delegated to Peco, it was an agent of the construction manager/general contractor (see, Russin v. Picciano Son, 54 N.Y.2d 311; D'Amico v. New York Racing Auth., 203 A.D.2d 509). Once an entity becomes an agent under the Labor Law it cannot escape liability to an injured plaintiff by delegating the work to another entity (see, Sperber v. Penn Cent. Corp., 150 A.D.2d 356).
There is also no merit to Peco's contention that defendant Barr Barr, Inc. (hereinafter Barr) could not enforce its right to contractual indemnity from Peco as there was no showing that Barr was actively negligent (see, Richardson v. Matarese, 206 A.D.2d 354; Curtis v. 37th St. Assocs., 198 A.D.2d 62; Damon v Starkweather, 185 A.D.2d 633).
However there is merit to Peco's contention that the defendant Brooklyn Hospital-Caledonian Hospital (hereinafter the Hospital) was not entitled to summary judgment against Peco on the issue of contractual indemnification. The Hospital supplied the equipment which caused the plaintiff's injuries, and therefore there are questions of fact as to whether the Hospital was negligent, which might preclude it from receiving full contractual indemnification (see, General Obligations Law § 5-322.1; Martin v. Back O'Beyond, 198 A.D.2d 479).
Because it is not clear that the actions of the plaintiff's employer, PRP Mechanical, Inc., were a contributing cause of the accident, Peco is not entitled to summary judgment on the issue of common-law indemnification (see, Kirkby v. Chautauqua Inst., 178 A.D.2d 929). Sullivan, J.P., Ritter, Pizzuto and Hart, JJ., concur.