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Newell v. Almeter-Barry Constr. Mgmt., Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 31, 1997
245 A.D.2d 1081 (N.Y. App. Div. 1997)

Opinion

December 31, 1997

Present — Denman, P.J., Lawton, Wisner, Balio and Boehm, JJ.


Order insofar as appealed from unanimously reversed on the law with costs to third-party plaintiff and cross motion granted. Memorandum: Supreme Court erred in denying the cross motion of third-party plaintiff, Almeter-Barry Construction Management, Inc. (Almeter-Barry), for summary judgment in its action against third-party defendant, Gypsum Systems, Inc. (Gypsum), for contractual and common-law indemnification. Almeter-Barry met its initial burden on the cross motion by submitting evidence that it did not direct, control or supervise the manner or method of work performed by Gypsum employees; that Gypsum directed and supervised the work of its employees ( see, Riley v. Stickl Constr. Co., 242 A.D.2d 936; Norton v. Bell Sons, 237 A.D.2d 928; Sikorski v. Springbrook Fire Dist., 225 A.D.2d 1041); and that its liability to plaintiffs, if any, exists by reason of its status as a construction manager and not by reason of active misconduct on its part ( see, Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 179; Conley v. Salt City Energy Venture, 234 A.D.2d 909, 910; Delaney v. Spiegel Assocs., 225 A.D.2d 1102, 1103-1104). Daryl C. Newell (plaintiff), an employee of Gypsum, was injured while taping drywall; a stilt attached to plaintiff's leg became entangled in an electrical cord, and plaintiff fell. Even assuming, arguendo, that a factual issue exists whether the electrical cord belonged to Gypsum or to another contractor, Gypsum failed to establish that Almeter-Barry was negligent in failing to direct the placement of electrical cords. There is no evidence that Almeter-Barry directed or supervised the work of any other contractor, and the general authority of Almeter-Barry to coordinate the work of the various contractors, inspect the work and enforce safety standards is not a sufficient basis for the imposition of liability ( see, DePillo v. Greater Auburn Land Co., 236 A.D.2d 863; Malecki v. Wal-Mart Stores, 222 A.D.2d 1010; Flick v. Eastman Kodak Co., 222 A.D.2d 1033). (Appeal from Order of Supreme Court, Erie County, Glownia, J. — Summary Judgment.)


Summaries of

Newell v. Almeter-Barry Constr. Mgmt., Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 31, 1997
245 A.D.2d 1081 (N.Y. App. Div. 1997)
Case details for

Newell v. Almeter-Barry Constr. Mgmt., Inc.

Case Details

Full title:DARYL C. NEWELL et al., Plaintiffs, v. ALMETER-BARRY CONSTRUCTION…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 31, 1997

Citations

245 A.D.2d 1081 (N.Y. App. Div. 1997)
667 N.Y.S.2d 551

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