Uribe v. Fairfax, L.L.C. , 851 N.Y.S.2d 545 ( 2008 )

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered September 1, 2006, which, insofar as appealed from, granted the motion of third-party defendant Garstin (Tenant) for summary judgment dismissing the third-party complaint, and denied the cross motion of Fairfax, L.L.C., Rockrose Development Corp. and Rockrose Corp. (Owners) for summary judgment against Tenant on the issue of their entitlement to common-law indemnification, unanimously affirmed, without costs.

Plaintiff John Uribe was injured when he fell from a ladder while in the employ of a contractor hired by Tenant to perform alteration work to Tenant’s apartment in Owners’ building. Uribe was granted partial summary judgment on his Labor Law § 240 (1) claim against Owners, and Owners seek to hold Tenant liable based on Tenant’s breach of a lease provision requiring Owners’ prior written consent to the work, and discussions between Tenant and the contractor regarding which phase of the job to start first.

Dismissal of the third-party complaint was proper where the record evidence establishes that Tenant was not in the apartment when the subject work was performed, gave the contractor no instructions regarding how to do the work, and did not supply any equipment or tools. Tenant also exercised no supervisory authority or control over the job, and Tenant’s alleged violation of the lease is not relevant to the issue of common-law indemnification in light of the lack of evidence that the accident was attributable to negligence on Tenant’s part (see Correia v Professional Data Mgt., 259 AD2d 60, 65 [1999]). Similarly, Tenant’s alleged conversations with the contractor regarding which tasks to perform first are insufficient to establish control over the work (see Garcia v Petrakis, 306 AD2d 315 [2003]; Richichi v Construction Mgt. Tech., 244 AD2d 540 [1997]). Concur—Lippman, P.J., Tom, Nardelli, Catterson and Moskowitz, JJ.