Eccleston v. Berakha

Appellate Division of the Supreme Court of the State of New York

Nov 18, 1996

Versions:233 A.D.2d 417

650 N.Y.S.2d 270

1996 N.Y. App. Div. LEXIS 11962

In an action to recover damages for personal injuries based upon negligence and violations of Labor Law §§ 200, 240, and 241, the defendant Jack Berakha appeals from an order of the Supreme Court, Kings County (Barasch, J.), dated April 19, 1995, which denied his motion for summary judgment on his cross claim for contractual and common-law indemnification against the defendant Shelkins Shops, Ltd., and to compel Shelkins Shops, Ltd., to pay his legal expenses.

Ordered that the order is reversed, on the law, with costs, and the motion is granted.

Jack Berakha correctly contends that he is entitled to common-law indemnification against Shelkins Shops, Ltd. (hereinafter Shelkins), because the sole basis of Berakha’s liability to the plaintiff is his status as owner of the premises and his liability under Labor Law § 240, and there has been no showing that Berakha supervised or controlled the plaintiff’s work (see, Kelly v Diesel Constr. Div., 35 NY2d 1; Dawson v Pavarini Constr. Co., 228 AD2d 466; Gange v Tilles Inv. Co., 220 AD2d 556; Danaher v Notarfrancesco, 213 AD2d 444; Guillory v Nautilus Real Estate, 208 AD2d 336; Richardon v Matarese, 206 AD2d 354; McNair v Morris Ave. Assocs., 203 AD2d 433; cf., Styer v Vita Constr., 174 AD2d 662, 663).

Berakha is entitled to recover his legal expenses in defending the plaintiff’s claims against him as part of his cause of action for common-law indemnification (see, Chapel v Mitchell, 84 NY2d 345).

Berakha is also entitled to contractual indemnification from Shelkins pursuant to the indemnification clause in the parties’ lease, since a finding of liability under Labor Law § 240 is not the equivalent of a finding of negligence and does not give rise to an inference of negligence (see, General Obligations Law § 5-321; Brown v Two Exch. Plaza Partners, 76 NY2d 172). Shelkins voluntarily assumed Berakha’s responsibility to perform fire damage related repairs and demolition. Mangano, P. J., Bracken, Thompson and McGinity, JJ., concur.