Opinion
March 5, 1998
Appeal from the Supreme Court, New York County (Lorraine Miller, J.).
Questions of fact remain as to the degree of supervision, direction and control exercised by Universal at the worksite sufficient to defeat its motion for summary judgment addressed to both O'Connor's and Whiting-Turner's third-party complaint against it and its own cross claims against McNulty ( see, Kingston v. Hunter Highlands, 222 A.D.2d 962). We would also note that Universal's subcontract gave it sufficient authority to exercise such supervision, direction and control to defeat its motion regardless of whether it actually did so ( see, Rodriguez v. Metropolitan Life Ins. Co., 234 A.D.2d 156; cf., Iveson v. Sweet Assocs., 203 A.D.2d 741). Moreover, upon a search of the record ( see, Dunham v. Hilco Contr. Co., 89 N.Y.2d 425, 429), we find factual issues as to the degree of control, if any, exercised by O'Connor and Whiting-Turner precluding summary judgment in their favor. With respect to Universal's cross claim against McNulty for breach of an alleged insurance procurement agreement, there are questions of fact remaining as to whether such an agreement exists, and, if so, whether McNulty breached it.
Concur — Rosenberger, J. P., Ellerin, Wallach and Rubin, JJ.