594 N.Y.S.2d 923 | N.Y. App. Div. | 1993
—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied the cross motion by defendant and third-party
Summary judgment should have been granted, however, on the cause of action for common-law indemnification. It is undisputed that Crane Hogan did not supervise, direct or control the work performed by employees of the subcontractor. Moreover, Crane Hogan’s retention of the right to terminate the contract constitutes, at best, a retention of general supervisory powers, which is insufficient to establish control over the specific manner of performance of the work (see, Dewitt v Pizzagalli Constr. Co., 183 AD2d 991, 993). Bruckel failed to raise a triable issue on its contention that Crane Hogan had control over the subcontractor’s work or that Crane Hogan’s conduct contributed to the occurrp ice of plaintiff’s injury. Thus, Crane Hogan was entitled to summary judgment on its complaint for common-law indemnification (see, Stimson v Lapp Insulator Co., 186 AD2d 1052).
Crane Hogan was not entitled, however, to summary judgment on its cause of action alleging that Bruckel breached the contract by failing to name Crane Hogan as an additional insured. Although Bruckel did fail to name Crane Hogan as an additional insured, the record also indicates that Crane Hogan knew, prior to commencement of work by Bruckel, that it had not been named as an additional insured. We reject Bruckel’s contention that Crane Hogan’s conduct in permitting Bruckel to proceed constitutes, by itself, a waiver of that contractual requirement. Proof of waiver requires evidence of an intentional relinquishment of a known right. Because factual issues exist whether Crane Hogan’s conduct was intentional or the result of neglect or inadvertence (see, Alsens Am. Portland Cement Works v Degnon Contr. Co., 222 NY 34, 37;
