In an action to recover damages for personal injuries, (1) the defendant Pepco Construction of New York, Inc., appeals from so much of an order of the Supreme Court, Queens County
Ordered that the appeal by the defendant F.R.E Sheet Metal Contracting Corp. from so much of the order dated July 9, 2004, as denied its cross motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated December 5, 2003, is affirmed insofar as appealed from; and it is further,
Ordered that the order dated July 9, 2004, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendants Fordham Construction Company and Savmor Mechanical, Inc., payable by the defendant Eepco Construction of New York, Inc., and one bill of costs is awarded to the plaintiff payable by the defendant F.R.E Sheet Metal Contracting Corp.
The Supreme Court properly denied summary judgment to the general contractor, the defendant Eepco Construction of New York, Inc. (hereinafter Eepco), on its cross claims for common-law and contractual indemnification against the subcontractors, the defendants Fordham Construction Company (hereinafter Fordham) and Savmor Mechanical, Inc. (hereinafter Savmor). Eepco met its initial burden of demonstrating, prima facie, its entitlement to indemnification as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]) by introducing its contracts with Savmor and Fordham, which
Additionally, the Supreme Court providently exercised its discretion in granting the plaintiff leave to reargue and, upon reargument, in denying that branch of the motion of F.R.P. Sheet Metal Contracting Corp. (hereinafter FRP) which was for summary judgment dismissing the cause of action to recover damages for a violation of Labor Law § 200 insofar as asserted against it and reinstating that cause of action. FRP failed to sustain its burden of establishing that it did not supervise or control the work of its employees, who may have created the dangerous condition that caused the plaintiff’s injuries (see Paladino v Society of N.Y. Hosp., 307 AD2d 343, 344-345 [2003]; Everitt v Nozkowski, 285 AD2d 442, 443 [2001]). Contrary to FRP’s apparent belief, the determinative factor is not whether the contractor exercised control over the plaintiffs work, but whether it had the authority to control the activity which caused the unsafe condition (see Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]; Mennerich v Esposito, 4 AD3d 399, 401 [2004]).
FRP also contends that the Supreme Court improperly denied that branch of its prior motion which was for summary judgment dismissing the cause of action alleging common-law negligence and all cross claims insofar as asserted against it. However, FRP appeals from so much of the order dated July 9, 2004, as denied its cross motion for leave to reargue that issue. As no appeal lies from the denial of reargument, that part of FRP’s appeal must be dismissed (see Kisswani v Manikis, 303 AD2d 643, 644 [2003]). Schmidt, J.P., S. Miller, Santucci and Spolzino, JJ., concur.
