Opinion
March 16, 1999
Appeal from the Supreme Court, Bronx County (Jerry Crispino, J.).
Plaintiff's testimony, corroborated by a co-worker, established a prima facie case under Labor Law § 240 (1) and § 241 (6), notwithstanding the fact that the two workers may have differed over whether the construction debris that struck plaintiff fell from the fourth "floor or second floor level of the elevator shaft in which plaintiff was working ( see, Gambino v. Crow Constr. Co., 238 A.D.2d 190, 191). Material issues of fact do exist, however, concerning the extent to which Gotham, the general contractor, retained control over the worksite. Accordingly, Gotham's motion for summary judgment against Cosner, the subcontractor and plaintiff's employer, under theories of common-law and contractual indemnification, was properly denied ( see, Quinn v. Tishman Constr. Corp., 249 A.D.2d 143). In this latter regard we note that the agreement between Gotham and Cosner impermissibly attempted to shift complete liability to Cosner, regardless of who or what caused the injury, thereby running afoul of General Obligations Law § 5-322.1 ( see, Itri Brick Concrete Corp. v. Aetna Cas. Sur. Co., 89 N.Y.2d 786). We modify only to grant the motion of Fordham for summary judgment upon its contractual indemnification claim against Cosner since it is undisputed that there was no actual negligence on Fordham's part ( see, Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 179).
Concur — Ellerin, P. J., Nardelli, Rubin and Saxe, JJ.