Niethe v. Palombo

May 2, 2001
Versions:283 A.D.2d 967
723 N.Y.S.2d 907
2001 N.Y. App. Div. LEXIS 4657

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff commenced this action to recover damages for injuries he sustained when he fell from a scaffold while installing drywall. Plaintiff was employed by third-party defendant, Darren Whittall, d/b/a Best Drywall (Whittall), the drywall contractor hired by defendant-third-party plaintiff, *968Richard E. McNamara, d/b/a McNamara Enterprises (McNamara), the general contractor. Supreme Court erred in denying McNamara’s cross motion for summary judgment in the third-party action seeking common-law indemnification from Whittall. The record establishes that the liability of McNamara is vicarious, arising solely from his status as general contractor (see, Colyer v K Mart Corp., 273 AD2d 809, 810). Whittall directed and controlled the work that plaintiff was performing at the time of the accident. “The mere retention by [McNamara] of [his] general supervisory authority over the worksite (see, Keck v Board of Trustees, 229 AD2d 1016, 1017) and the retention of [his] authority to inspect the worksite periodically and enforce general safety standards (see, DePillo v Greater Auburn Land Co., 236 AD2d 863, 864) does not preclude [McNamara] from obtaining common-law indemnification from [Whittall]” (DiVincenzo v Tripart Dev., 272 AD2d 904, 905). We therefore modify the order by granting the cross motion. McNamara does not address in his brief that part of the order granting plaintiff’s motion for partial summary judgment on the issue of liability under Labor Law § 240 (1), and thus any issue with respect to that part of the order is deemed abandoned (see, Ciesinski v Town of Aurora, 202 AD2d 984). (Appeal from Order of Supreme Court, Erie County, Fahey, J. — Summary Judgment.) Present — Green, J. P., Hayes, Hurlbutt, Kehoe and Law-ton, JJ.