Reilly v. S. DiGiacomo & Son, Inc. (261 A.D.2d 318, 1999)

Ted Reilly, Plaintiff, v S. DiGiacomo & Son, Inc., Respondent, and Eve H. Rice et al., Appellants. (And a Third-Party Action.)

[690 NYS2d 424]

—Order, Supreme Court, Bronx County (George Friedman, J.), entered March 4, 1998, which, in an action by a laborer under Labor Law § 240 (1) to recover for personal injuries sustained when the scaffold on which he was working collapsed, granted plaintiffs motion for summary judgment against defendants owners of the site and defendant general contractor, and, insofar as appealed from, denied the owners’ cross motion for summary judgment on their cross claim against the general contractor for common-law indemnification, unanimously affirmed, without costs.

The owners’ cross motion was properly denied because, although no issues of fact exist as to the purely vicarious nature of their liability, their evidence does not establish, as a matter of law, that the general contractor was either negligent or exclusively supervised and controlled plaintiffs work site (cf., Dias v Stahl, 256 AD2d 235). Concur — Sullivan, J. P., Tom, Mazzarelli, Rubin and Friedman, JJ.