Anastasiov.Kiska Constr. Corp.

Appellate Division of the Supreme Court of New York, Second DepartmentJul 6, 1999
263 A.D.2d 442 (N.Y. App. Div. 1999)
263 A.D.2d 442692 N.Y.S.2d 696

Submitted May 14, 1999

July 6, 1999

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff, Kiska Construction Corporation — USA, appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated June 10, 1998, as denied that branch of its motion which was for summary judgment against the third-party defendant. Takbeer Enterprises, Inc., on its cause of action for common-law indemnification.

Gallacher, Kushel and Horvat, Riverhead, N.Y. (Robert F. Horvat of counsel), for defendant third-party plaintiff-appellant.

O'Connor, O'Connor, Hintz Deveney, Garden City, N.Y. (Robin Mary Heaney and Eugene O. Morenus of counsel), for third-party defendant-respondent.

FRED T. SANTUCCI, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, NANCY E. SMITH, JJ.


DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff was injured while attempting to manually lift concrete forms at a bridge construction project in West Islip. The plaintiff was an employee of the third-party defendant, Takbeer Enterprises, Inc. (hereinafter Takbeer), a subcontractor which had been engaged to do certain concrete work on the bridge by the defendant third-party plaintiff, Kiska Construction Corporation — USA (hereinafter Kiska), the general contractor. Kiska contends that it is entitled to summary judgment against Takbeer on a theory of common-law indemnification because the plaintiff's work was being directed by Takbeer employees at the time of the accident. We disagree.

There are questions of fact as to the nature and degree of Kiska's supervision and control of the work site where the plaintiff's injury occurred. Kiska employed a safety director who, by his own admission, was present at the worksite every day and who conducted safety meetings for all employees, including those of Takbeer ( see, Samuel v. General Cinema Theaters, 254 A.D.2d 85; cf., Putnam v. Karaco Indust. Corp., 253 A.D.2d 457). Moreover, prior to the happening of the accident, Kiska rejected requests to obtain mechanical equipment which would have facilitated the lifting of the concrete forms, and which may have prevented the particular accident herein.

In view of these circumstances, Kiska is not entitled to common-law indemnification at this juncture of the lawsuit ( see, Delmar v. TerraStruct Corp., 249 A.D.2d 259; Murphy v. Islat Assocs. Graft Hat Mfg., Co., 237 A.D.2d 166).