Opinion
December 26, 1991
Appeal from the Supreme Court, Chautauqua County, Ricotta, J.
Present — Denman, P.J., Doerr, Green, Balio and Lawton, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Plaintiff was injured when he fell off a scaffold while working on construction of a school gymnasium. Defendant and third-party plaintiff Cassadaga Valley Central School District (Cassadaga) owns the property; defendant Meister Contracting Company, Inc. (Meister) was the general contractor; defendant Anco Contracting, Inc. (Anco), which owned the scaffold, was a subcontractor hired by Meister to do the painting and plastering; and third-party defendant C.A. Betts Masonry, Inc. (Betts), plaintiff's employer, was a subcontractor hired by Meister to do the masonry work.
The court erred in denying plaintiff's motion for partial summary judgment imposing liability under Labor Law § 240 (1) against Cassadaga and Meister. Plaintiff established that he fell from an elevated worksite, that the scaffold lacked safety rails on all but the rear of the platform, and that he was not wearing a safety belt or other safety device when he fell. That is sufficient to impose absolute liability upon the owner and contractor (see, Goldbach v Erie County Indus. Dev. Agency, 142 A.D.2d 948, lv dismissed 73 N.Y.2d 865; Armstrong v Sherrill-Kenwood Water Dist., 135 A.D.2d 1081; Goldthwait v State of New York, 120 A.D.2d 969). The availability of safety devices at the jobsite is insufficient to defeat plaintiff's entitlement to summary judgment (see, Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 524, rearg denied 65 N.Y.2d 1054; Koumianos v State of New York, 141 A.D.2d 189, 192; Heath v Soloff Constr., 107 A.D.2d 507, 512). There is no merit to defendants' contention that the motion was properly denied because this was an unwitnessed accident and only plaintiff had knowledge of the facts (see, Marasco v Kaplan, 177 A.D.2d 933; cf., Carlos v Rochester Gen. Hosp., 163 A.D.2d 894). Plaintiff's co-worker, Dan Smith, was also on the scaffold when plaintiff fell and his version of the accident coincided with plaintiff's testimony.
The court erred in denying the portion of Anco's cross motion seeking dismissal of plaintiff's Labor Law causes of action against it. Anco lacked the authority to supervise or control plaintiff's activities on the jobsite (see, Russin v Picciano Son, 54 N.Y.2d 311, 316-318; Headen v Progressive Painting Corp., 160 A.D.2d 319, 320; Magrath v Migliore Constr. Co., 139 A.D.2d 893). The fact that Anco furnished the scaffold does not, by itself, amount to supervision and control of plaintiff's work (see, Kerr v Rochester Gas Elec. Corp., 113 A.D.2d 412, 416-417).
The court, however, properly denied Anco's motion seeking dismissal of plaintiff's common-law negligence cause of action. There are questions of fact whether Anco furnished a defective scaffold or gave improper instructions on how to erect and to use it.
The court erred in denying Cassadaga's cross motion for summary judgment on contractual indemnification against Meister. The contract between Cassadaga and Meister contains a broad indemnity clause under which Meister is required to indemnify Cassadaga against all claims arising out of the performance of the work. This manifests a clear intention to indemnify (see, Margolin v New York Life Ins. Co., 32 N.Y.2d 149, 153). Section 5-322.1 Gen. Oblig. of the General Obligations Law does not render the indemnification clause unenforceable. Cassadaga's liability, as owner, is based on Labor Law § 240 (1), which imposes absolute liability. In any event, there is no evidence of Cassadaga's negligence because the inspector it employed did not supervise or direct the construction work and did not control the use of safety equipment. Thus, there is no material issue of fact precluding summary judgment to Cassadaga on contractual indemnification against Meister (see, Brown v Two Exch. Plaza Partners, 146 A.D.2d 129, 139, affd 76 N.Y.2d 172, 178-181).
The court, however, correctly denied Cassadaga summary judgment for contractual indemnification against Anco and Betts. Cassadaga had no direct contractual relationship with Anco or Betts. There is no merit to Cassadaga's contention that the indemnification clause in its contract with Meister applies equally to Anco and Betts. The indemnification clause between Meister as contractor and Anco and Betts as subcontractors is contained in the purchase orders between these parties and is much narrower and more limited than the indemnification clause between Cassadaga and Meister. It requires indemnification only for injuries resulting from willful acts or negligence and there is no evidence of either on the part of Anco or Betts.
For similar reasons, the court properly denied Meister summary judgment on contractual indemnification against Anco and Betts. Moreover, Meister is not entitled to common-law indemnification from Anco or Betts because there is evidence that indicates that Meister's liability was not merely vicarious (see, Dormitory Auth. v Caudill Rowlett Scott, 160 A.D.2d 179, lv denied 76 N.Y.2d 706). Under the general contract, Meister retained control and sole responsibility for every aspect of the construction project and there is a question of fact whether Meister breached its contractual duty.
Accordingly, the order is modified by granting plaintiff partial summary judgment on liability against Cassadaga and Meister under Labor Law § 240 (1); by granting Cassadaga summary judgment against Meister for contractual indemnification; and by granting summary judgment to Anco dismissing plaintiff's Labor Law causes of action against it. Otherwise, the order is affirmed.