Opinion
November 19, 1993
Appeal from the Supreme Court, Niagara County, Koshian, J.
Present — Callahan, J.P., Pine, Balio, Doerr and Boomer, JJ.
Cross appeal unanimously dismissed and order affirmed without costs. Memorandum: Supreme Court properly granted the cross motion of third-party plaintiff, U.S. Vanadium Corporation (Vanadium), for summary judgment on its contractual indemnification claim. Vanadium established that it did not direct or control the work performed by employees of third-party defendant, Scrufari Construction Co., Inc. (Scrufari). The fact that Vanadium retained the right to terminate the contract is insufficient to establish control over the performance of the work (see, Hayes v Crane Hogan Structural Sys., 191 A.D.2d 978; Allman v Ciminelli Constr. Co., 184 A.D.2d 1022, 1023; Fox v Jenny Eng'g Corp., 122 A.D.2d 532, affd 70 N.Y.2d 761). Scrufari failed to raise a triable issue of fact that Vanadium was responsible for negligence that contributed to the accident (see, General Obligations Law § 5-322.1; Connolly v Brooklyn Union Gas Co., 168 A.D.2d 477, 478, lv denied 78 N.Y.2d 864).
The cross appeal of Vanadium must be dismissed because Vanadium is not an aggrieved party (see, CPLR 5511; Town of Massena v Niagara Mohawk Power Corp., 45 N.Y.2d 482, 488; Matter of Brown v Starkweather, 197 A.D.2d 840, lv denied 82 N.Y.2d 653). The order recites that the cross motion for summary judgment on the contractual indemnity claim "is, in all respects, granted"; it thereby awarded the litigation costs that Vanadium sought with respect to its contractual indemnity claim.
Vanadium also argues that this Court should grant its cross motion for summary judgment on its common-law indemnification claim. It maintains that, although the court did not address that aspect of its cross motion, this Court has the power to search the record and grant it summary judgment on that ground, pursuant to Merritt Hill Vineyards v Windy Hgts. Vineyard ( 61 N.Y.2d 106). The court's failure to rule on the common-law indemnification claim is deemed a denial of that part of the cross motion (see, People v Bailey, 58 N.Y.2d 272, 275; Brenan v Moore-McCormack Lines, 3 A.D.2d 1006). Furthermore, Vanadium is limited by its notice of cross appeal to arguing only with respect to litigation costs (see, CPLR 5515; Royal v Brooklyn Union Gas Co., 122 A.D.2d 132, 133).