Schwalm v. County of Monroe
| Decision Date | 02 February 1990 |
| Citation | 158 A.D.2d 994,550 N.Y.S.2d 970 |
| Parties | Francis J. SCHWALM and Ann V. Schwalm, Appellants, v. COUNTY OF MONROE, Rochester Pure Waters District and City of Rochester, Respondents-Appellants. COUNTY OF MONROE and Rochester Pure Waters District, Third-Party Plaintiffs-Appellants, v. JOHN P. BELL & SONS, INC., Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Chamberlain, D'Amanda, Oppenheimer & Greenfield by Thomas Collins, Rochester, for appellants Schwalms.
Louis N. Kash by Gregory Phillips, Rochester, for respondent-appellant City of Rochester.
Connors, Corcoran, Hall & Meyering by Cheryl Loria-Dinolfo, Rochester, for respondents-appellants County of Monroe and Rochester Pure Waters.
Gibson, McAskill & Crosby by Mark Spitler, Buffalo, for third-party defendant-respondent, John P. Bell & Sons, Inc.
Before CALLAHAN, J.P., and DENMAN, GREEN, BALIO and LAWTON, JJ.
Plaintiff Francis Schwalm was injured when he fell from an elevated worksite while building forms and erecting tubular metal framework. Plaintiffs established that there were no railings or other safety devices in place to prevent a worker from falling off the planking on which he was working. Thus, plaintiffs were entitled to partial summary judgment on liability under Section 240(1) of the Labor Law (see, Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 524, 493 N.Y.S.2d 102, 482 N.E.2d 898; Heath v. Soloff Constr. Inc., 107 A.D.2d 507, 487 N.Y.S.2d 617).
Supreme Court also erred in denying the cross motion for summary judgment by the City of Rochester (City) against the County of Monroe (County) and the Rochester Pure Waters District (District) for contractual indemnification. A 1971 lease agreement provides for such indemnification. The City's liability to plaintiffs in the primary action is based solely on its status as owner of the property, and the City had no control or supervision of the worksite (see, Kosiorek v. Bethlehem Steel Corp., 145 A.D.2d 935, 936, 536 N.Y.S.2d 614; Conway v. New York State Teachers' Retirement Sys., 141 A.D.2d 957, 959-960, 530 N.Y.S.2d 300).
Plaintiff was working as an employee of John P. Bell & Sons, Inc. (Bell) at the time of the accident. Since Bell is ultimately and vicariously responsible for plaintiff's injuries, it was error for the court to deny the cross motions of the County and the District for common law indemnification (see, McDermott v. City of New York, 50 N.Y.2d 211, 428...
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