OPINION OF THE COURT
Plаintiffs move for. summary judgment pursuant to CPLR 3212 dismissing the third-party complaint as regards both third-party defendants. The motion as regards third-party defendant Gatley Construction is based on an argument that a third-party complaint in an action under Labor Law § 240 against a partnership of which plaintiff is a member is impermissible. The motion as regards third-party defendant Basile is based on an argument that a showing оf active negligence on the part of Basile is required and that no such showing sufficient to defeat a summary judgment motion has been made.
Briefly, the facts underlying this action are as follows: Gatley Construction, an unincorporated partnership of рlaintiff, Thomas S. Gatley, and third-party defendant, Richard Basile,
The initial question raised by plaintiff is whether an owner with a nondelegable and absolute duty under Labor Law § 240 may maintain a third-party action for contribution or indemnification against an unincorporated generаl contractor of which plaintiff is a partner. To this court’s knowledge, this question has not been decided by any court in this State in а reported opinion. The Second Department recently decided in Crawford v Leimzider (
CPLR 1025 provides that a partnership may be sued in its partnership name. The intention of the section as enunciated in case law interpreting it and its predecessor under the Civil Practice Act, was the treatment of a partnership as a separate entity for pleading purposes, but to leave intact substantive law and rulеs with regard to the service of individual partners. (Golia v Health Ins. Plan of Greater N. Y.,
On the other hand, the allegations of negligence on the part of third-party defendants in support of their contribution claim insofar as those allegations pertain to plaintiff’s conduct are to be stricken. A partnership, since it is not a separate entity, does not perform acts of negligence; only thе partners or their agents may perform acts of negligence for which the partners individually and as a partnership may bе liable. (Golia v Health Ins. Plan of Greater N. Y., supra, at p 885.) Any liability on the part of a partnership for acts of the plaintiff himself, as a partner, would certainly violate, at least, the spirit of the Court of Appeals decision in Haimes (supra). Thus, only allegations of negligence on the part of Richard Basile or his agents other than the plaintiff may be maintained.
Finally, plaintiffs argue that there must be active negligence of third-рarty defendants in order to claim contribution citing Robinson v Shapiro (646 F2d 734 [2d Cir 1981]). Although this may be a correct statement of law regarding contribution claims against subcontractors, general contractors, like owners, are subject to nondelegable liability regardless of control and regardless of whether there has been active negligence. (Haimes v New York Tel. Co., supra, at p 136; Long v Forest-Fehlhaber,
Even if active negligence werе required, there has been a sufficient showing of active negligence to defeat a summary judgment motion. Richard Basile, at еxamination before trial (EBT), said that he moved the scaffolding and engaged the locking mechanism on the four wheels. There appears to be a
For the foregoing reasons, plaintiffs’ motion is denied in all respects except, as noted above, regarding limitation of allegations in the third-party complaint so as to exclude any allegation of any acts of plaintiff.