Opinion
July 15, 1994
Appeal from the Supreme Court, Monroe County, Rosenbloom, J.
Present — Denman, P.J., Fallon, Wesley, Doerr and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following 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 flat bed 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; see, Hagins v. State of New York, 159 A.D.2d 941, affd 81 N.Y.2d 921; Cox v. LaBarge Bros. Co., 154 A.D.2d 947, lv dismissed 75 N.Y.2d 808).
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; LaCroix v. Migliore Constr. Co., 142 A.D.2d 980). 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; Smith v. Cassadaga Val. Cent. School Dist., 178 A.D.2d 955, 957). 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), 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. Div., 35 N.Y.2d 1).
The court erred, however, in denying Triangle's cross motion for summary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action. The failure of plaintiff to allege specific sections of the Industrial Code violated by Triangle either in his complaint or bill of particulars requires dismissal of that cause of action (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 503-505; see also, Comes v. New York State Elec. Gas Corp., 82 N.Y.2d 876, 878; Foster v. Spevack, 198 A.D.2d 892, 894; Pellescki v. City of Rochester, 198 A.D.2d 762, lv denied 83 N.Y.2d 752).