The court properly granted, however, that part of the cross motion of BMHA for summary judgment on its third-party claim for common-law indemnification. BMHA established that it was not present at the worksite and did not supervise, direct or control plaintiff's work. Ferraina failed to raise an issue of fact whether BMHA's liability was other than vicarious ( see, Colyer v. K Mart Corp., supra, at 810; Gillmore v. Duke/Fluor Daniel, supra, at 939-940; Stimson v. Lapp Insulator Co., 186 A.D.2d 1052, 1053). Premier further contends that the order is internally inconsistent because the court's award of summary judgment to BMHA against Ferraina requires an implicit finding that Ferraina was negligent.
The indemnification provision is triggered only in the event of a finding of negligence on the part of Mirage or its agents, employees or subcontractors. There is no basis in the record to find such negligence as a matter of law (see, Malecki v. Wal-Mart Stores, 222 A.D.2d 1010, 1011; Baskewicz v. Rochester Gas Elec. Corp., 217 A.D.2d 922, 923; Hayes v. Crane Hogan Structural Sys., 191 A.D.2d 978, 979; Stimson v. Lapp Insulator Co., 186 A.D.2d 1052, 1053), and thus we modify the order by denying that part of the motion. The court properly granted, however, that part of the motion of K Mart and Massa for summary judgment on their third-party claim for common-law indemnification.
The court properly denied that part of the cross motion of plaintiff's employer, third- and fourth-party defendant Tambe Electric, Inc. (Tambe), for summary judgment dismissing the contribution and common-law indemnification claims of Vasile and defendant and fourth-party plaintiff against it. Tambe failed to meet its initial burden of establishing its entitlement to judgment as a matter of law ( see, CPLR 3212 [b]; Malecki v. Wal-Mart Stores, 222 A.D.2d 1010; Gillmore v. Duke/Fluor Daniel, 221 A.D.2d 938, 940; Stimson v. Lapp Insulator Co., 186 A.D.2d 1052, 1053).
We agree with the Bank of New York's claim that the court erred in denying that branch of its cross motion which was for summary judgment on its cause of action for common-law indemnification against the third-party defendant, American Armatura Co. Inc. The Bank of New York has demonstrated that it neither controlled nor directed the plaintiff's work and the third-party defendant's bald conclusory allegations to the contrary are insufficient to defeat the Bank of New York's cross motion for summary judgment on the issue of common-law indemnification ( see, Clark v. 345 E. 52nd St. Owners, 245 A.D.2d 410; Isnardi v. Genovese Drug Stores, 242 A.D.2d 672; Richardson v. Matarese, 206 A.D.2d 354). The Bank of New York has not established its entitlement to judgment as a matter of law on the issue of contractual indemnification ( see, Werner v. East Meadow Union Free School Dist., 245 A.D.2d 367; Stimson v. Lapp Insulator Co., 186 A.D.2d 1052). Rosenblatt, J. P., Ritter, Copertino and Goldstein, JJ., concur.
equired to report to a supervisor employed by J. P. Daly. That HEC periodically inspected the progress of the work to make sure it was proceeding on schedule, and, along with the Power Authority attended a preconstruction meeting at which safety issues were discussed, is insufficient to raise an issue as to whether HEC and the Power Authority were actively negligent (see, Richardson v. Matarese, 206 A.D.2d 354, 355; Curtis v. 37th St. Assocs., 198 A.D.2d 62, 63; Damon v. Starkweather 185 A.D.2d 633, 634). Inasmuch as J. P. Daly failed to submit proof from which it could be determined that the liability of the appellants was anything but vicarious, the appellants are entitled to conditional summary judgment on the issue of indemnity against J. P. Daly pending the determination of the plaintiff's action (see, Richardson v. Matarese, supra). We have considered the appellants' remaining contentions and find them to be without merit (see, Gillmore v. Duke/Fluor Daniel, 221 A.D.2d 938, 939; Stimson v. Lapp Insulator Co., 186 A.D.2d 1052, 1053). Mangano, P.J., Copertino, Krausman and McGinity, JJ., concur.
Only if it was determined as a matter of law that McErlean Construction was not responsible for the plaintiff's injuries would summary judgment have been appropriate ( see, Edholm v. Smithtown Dicanio Org., supra; Young v. Casabonne Bros., supra; La Lima v. Epstein, supra). This determination, however, cannot be made on the record before us inasmuch as Donald McErlean has not yet been deposed and his degree of control or supervision of the plaintiff's work, which is relevant to assessing the responsibility, if any, of McErlean Construction, is unclear ( see, Edholm v. Smithtown Dicanio Org., supra; Graziano v. 118-17 Liberty Ave. Mgt. Corp., 209 A.D.2d 582; Stimson v. Lapp Insulator Co., 186 A.D.2d 1052). Accordingly, summary judgment on the issue of common-law indemnification was prematurely granted.
Defendant's general supervision and presence at the work site to check on the progress of the work and compliance with building specifications does not constitute the control or supervision necessary to establish liability under section 200 or for common-law negligence (see, McCune v. Black Riv. Constructors, 225 A.D.2d 1078, 1079, 639 N.Y.S.2d 203; Enderlin v. Hebert Indus. Insulation, 224 A.D.2d 1020, 638 N.Y.S.2d 262). In the absence of proof that it exercised supervisory control over McNamee's work, defendant was entitled to conditional summary judgment on its third-party complaint for common-law indemnification (see, Stimson v. Lapp Insulator Co., 186 A.D.2d 1052, 1053, 588 N.Y.S.2d 494). Thus, we modify the order by granting that part of defendant's motion for conditional summary judgment on the third-party complaint for common-law indemnification and for summary judgment dismissing the common-law negligence and Labor Law ยงยง 200 and 241-a causes of action.
In support of its cross motion, Sessler asserted that plaintiffs work was solely directed and controlled by A.A.A.C. That assertion is supported by the unrefuted testimony of plaintiff that he was hired and took orders at the work: site only from A.A.A.C. employees and that A.A.A.C. furnished all of his equipment and supplies, including the ladder from which he fell. Plaintiff additionally testified that only employees of A.A.A.C. were performing asbestos removal in the buildings and that no Sessler employees were working in the buildings. Because the record is devoid of evidence that Sessler directed, controlled or supervised the manner in which plaintiff performed his work, it was entitled to summary judgment on its cross claim for commonlaw indemnification ( see, Stimson v Lapp Insulator Co., 186 AD2d 1052, 1053; Damon v Stark-weather, 185 AD2d 633; see also, Enderlin v Hebert Indus. Insulation, 224 AD2d 1020; Malecki v Wal-Mart Stores, 222 AD2d 1010). The fact that Sessler may have had general supervisory authority over the work, including the authority to enforce general safety standards, is insufficient to establish that it directed or controlled plaintiffs work ( see, Enderlin v Hebert Indus. Insulation, supra; Malecki v Wal-Mart Stores, supra; Hayes v Crane Hogan Structural Sys., 191 AD2d 978).
This is a determinative factor militating against any finding that Ricupero was in the "special employ" of Venditti at the time of the accident ( see, Thompson v Grumman Aerospace Corp., 78 NY2d 553; Matter of Shoemaker v Manpower, Inc., 223 AD2d 787, lv dismissed 88 NY2d 874). In our view, plaintiffs proof sufficiently established that defendant controlled and directed the performance of Ricupero's work at the jobsite "and therefore [it] had an obligation `to protect its own employee from the foreseeable risks of the accident which occurred'"( Stimson v Lapp Insulator Co., 186 AD2d 1052, 1053, quoting Conway v New York State Teachers' Retirement Sys., 141 AD2d 957, 959). Defendant contends that it cannot be held liable under the common law for Ricupero's injuries since the use of the closed stepladder was a known and obvious dangerous condition ( see, Gasper v Ford Motor Co., 13 NY 2d 104).
Skyway's agreement with Argonox requires Skyway to indemnify Argonox for damages due to personal injury where the damages are caused by Skyway's negligence. No finding of negligence on the part of the indemnitor Skyway has yet been made ( see, Cichon v. Brista Estates Assocs., 193 A.D.2d 926, 927-928; Edwards v. International Bus. Machs. Corp., 174 A.D.2d 863, 865). Further, as there is an issue of fact whether Argonox exercised control over the work site through Wilson Young, the motion was properly denied as it relates to common-law indemnity ( see, Stimson v. Lapp Insulator Co., 186 A.D.2d 1052, 1053). Casey and Peters, JJ., concur.