Opinion
December 22, 1995
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Green, J.P., Pine, Wesley, Balio and Boehm, JJ.
Order and judgment unanimously affirmed with costs. Memorandum: Supreme Court properly granted plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). Plaintiff, an employee of fourth-party defendant Frontier Insulation/Rochester, Inc. (Frontier), established that the statute was violated and that the violation was the proximate cause of his injury (see, Bland v Manocherian, 66 N.Y.2d 452). Two co-workers, who heard but did not see plaintiff fall, corroborated plaintiff's account of the accident (see, Turner v Eastman Kodak Co., 210 A.D.2d 883). Speculation that the accident might have occurred in another manner or that it did not occur at all is insufficient to create an issue of fact (see, DeRocha v Old Spaghetti Warehouse, 207 A.D.2d 978, 979; Damon v Starkweather, 185 A.D.2d 633).
The court also properly granted the motion of defendant-third party plaintiff Eastman Kodak, Co., Inc. (Kodak) against third-party defendant and fourth-party plaintiff Monroe Piping Sheet Metal, Inc. (Monroe) for summary judgment on common-law indemnification and the motion of Monroe against Frontier for summary judgment on common-law indemnification. The record establishes that neither Monroe nor Kodak directed or controlled the manner in which Frontier employees performed their work or provided safety equipment for their employees (see, Grant v Gutchess Timberlands, 214 A.D.2d 909; Damon v Starkweather, supra). The periodic inspection of the work by a Kodak employee does not constitute the type of supervision or control necessary to establish Kodak's commonlaw liability for the injury sustained by plaintiff (see, Loper v City of Rochester, 209 A.D.2d 1052; Damon v Starkweather, supra).
Finally, the court properly granted the motion of Monroe against Frontier for summary judgment on contractual indemnification (see, Smith v Cassadaga Val. Cent. School Dist., 178 A.D.2d 955, 957). The agreement between those parties requires Frontier to indemnify Monroe against all damages for personal injuries arising out of Frontier's performance of the work, other than those caused by Monroe's negligence. Plaintiff's injuries arose out of Frontier's performance and there is no evidence of negligence on the part of Monroe.