Orr v. David Christa Const., Inc.

• Decision Date: 15 July 1994
• Citation: 615 N.Y.S.2d 543,206 A.D.2d 881
• Parties: Robert B. ORR, Respondent, v. DAVID CHRISTA CONSTRUCTION, INC., Respondent and Third-Party Plaintiff, and Triangle Steel, Inc., Appellant and Third-Party Plaintiff-Appellant. Binghamton Steel Erectors, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 543

615 N.Y.S.2d 543

206 A.D.2d 881

Robert B. ORR, Respondent, v. DAVID CHRISTA CONSTRUCTION, INC., Respondent and Third-Party Plaintiff and Triangle Steel, Inc., Appellant and Third-Party Plaintiff-Appellant Binghamton Steel Erectors, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division Fourth Department.

July 15, 1994.

Connors & Corcoran by Cheryl Loria-Dinolfo, Rochester, for appellant.

Hirsch and Tubiolo (Christopher S. Noone, of counsel), Rochester, for respondent--Robert Orr.

Harris Beach and Wilcox by Laura J. Wilson, Rochester, for respondent--David Christa Const., Inc.

Saperston and Day, P.C. by Jan R. McConnaughey, Rochester, for third-party defendant-respondent--Binghamton.

Before DENMAN, P.J., and FALLON, WESLEY, DOERR and BOEHM, JJ.

MEMORANDUM:

Supreme Court properly granted plaintiff summary judgment on his Labor Law § 240(1) cause of action against defendant and third-party plaintiff Triangle Steel, Inc. (Triangle). Contrary to Triangle's contention, plaintiff, who was unloading structural steel from a flatbed trailer at the time he was injured, was engaged in protected activity under Labor Law § 240(1). Plaintiff's work was clearly "necessary and incidental" to the construction project (Mosher v. St. Joseph's Villa, 184 A.D.2d 1000, 1002, 584 N.Y.S.2d 678; see, Hagins v. State of New York, 159 A.D.2d 941, 552 N.Y.S.2d 797, aff'd 81 N.Y.2d 921, 597 N.Y.S.2d 651, 613 N.E.2d 557; Cox v. LaBarge Bros. Co., 154 A.D.2d 947, 547 N.Y.S.2d 167, appeal dismissed 75 N.Y.2d 808, 552 N.Y.S.2d 110, 551 N.E.2d 603).

We reject the contention that the court improperly denied the cross motion of Triangle for summary judgment on its contractual and common-law indemnification causes of action against plaintiff's employer, Binghamton Steel Erectors (Binghamton), a subcontractor on the construction project where plaintiff was injured. The record reveals triable issues of fact concerning Binghamton's negligence, making summary judgment inappropriate on Triangle's contractual indemnification cause of action (cf. Stimson v. Lapp Insulator Co., 186 A.D.2d 1052, 588 N.Y.S.2d 494; LaCroix v. Migliore Constr. Co., 142 A.D.2d 980, 530 N.Y.S.2d 401). Because there are also questions of fact regarding the degree of control exercised by Triangle over the manner of loading the structural steel onto the flatbed trailer, the court properly denied the cross motion of Triangle for summary judgment on its common-law indemnification cause of action (see, Schelble v. ADF Constr. Corp., 199 A.D.2d 973, 608 N.Y.S.2d 25; Smith v. Cassadaga Val. Cent. School Dist., 178 A.D.2d 955, 957, 578 N.Y.S.2d 747). The court properly granted summary judgment to the general contractor of the construction project, David Christa Construction, Inc. (Christa), on Christa's contractual and common-law indemnification causes of action in light of the indemnification and defense clauses in Christa's contract with Triangle (see, Drzewinski v. Atlantic Scaffold & Ladder Co., 70 N.Y.2d 774, 777, 521 N.Y.S.2d 216, 515 N.E.2d 902), and the complete absence of control or supervision by Christa of the fabrication, delivery or unloading of the structural steel (see, Kelly v. Diesel Constr., 35 N.Y.2d 1, 358 N.Y.S.2d 685, 315...