Opinion
3960.
Decided June 22, 2004.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 1, 2003, which granted defendant WFP 245 Park's motion for summary judgment on its cross claim against defendant
Eustace Marquez, White Plains (Heath A. Bender of counsel), for appellant.
Alexander J. Wulwick, New York, for Murphy respondents.
Cerussi Spring, White Plains (Jennifer R. Freedman of counsel), for WFP 245 Park Co., L.P., respondent.
Pollack, Pollack, Isaac DeCicco, New York (Brian J. Isaac of counsel), for Fraser Gold Carpet Corp., respondent.
Before: Nardelli, J.P., Mazzarelli, Andrias, Gonzalez, Sweeny, JJ.
Bear Stearns for contribution and indemnification, denied Bear Stearns's cross motion for summary judgment dismissing the complaint and all claims against it, denied Bear Stearns's motion for summary judgment against third-party defendant Fraser Gold Carpet, and granted Fraser Gold's motion for summary judgment dismissing the third-party complaint, unanimously modified, on the law, WFP Park's motion with respect to common-law indemnification denied, and otherwise affirmed, without costs.
Fraser Gold, the carpeting subcontractor, had no authority to supervise or control the demolition work that actually gave rise to plaintiff's injuries, and thus any claims against it were properly dismissed ( see Walsh v. Sweet Assoc., 172 A.D.2d 111, lv denied 79 N.Y.2d 755). A factual issue remains, however, as to the tenant Bear Stearns's authority to supervise and control the ongoing demolition and renovation work. An issue also exists with regard to plaintiff's Labor Law § 241(6) claim of a violation of the Industrial Code ( 12 NYCRR 23-1.7[e]) — specifically, whether the studding over which plaintiff tripped was part of new drywall construction or whether they were studs that had yet to be demolished ( see Vieira v. Tishman Constr. Corp., 255 A.D.2d 235).
The landlord was entitled to summary judgment on its motion for contractual indemnification since there is no issue of negligence on the part of the landlord. However, in light of factual issues concerning the extent to which Bear Stearns was liable, the issue of common-law indemnification is not yet ripe for adjudication ( Correia v. Professional Data Mgt., 259 A.D.2d 60, 65).
M-1060 — Murphy, et al. v. WFP 245 Park Co., et al.
Motion seeking leave to supplement record granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.