Schlueter v. Health Care Plan, Inc.

Order unanimously reversed on the law [953] without costs and motion granted. Memorandum: On the record before us, we conclude that Health Care Plan, Inc. (Health Care), the owner of the construction project, is entitled to conditional summary judgment against A.D.F. Construction (A.D.F.), the general contractor, for contractual and common-law indemnification. The contract between Health Care and A.D.F. contains an indemnification clause sufficient to impose liability upon A.D.F. for indemnification (see, Public Adm’r of Bronx County v Trump Vil. Constr. Corp., 177 AD2d 258; Pietsch v Moog, Inc., 156 AD2d 1019, 1020-1021; Conway v New York State Teachers’ Retirement Sys., 141 AD2d 957, 959). Moreover, the contract places the responsibility on A.D.F. for controlling the work and for safety on the work site. The EBT testimony of Mr. Infantino of Health Care demonstrated that Health Care did not inspect the work, employ a construction manager, supply workers or equipment, or advise the subcontractors. A.D.F. presented no evidence of negligence on the part of Health Care sufficient to preclude summary judgment. We note that our prior decision in the case (Schlueter v Health Care Plan, 168 AD2d 985) does not compel a different result because the issue of indemnification was not before us on that appeal. (Appeal from Order of Supreme Court, Erie County, Wolfgang, J. — Summary Judgment.) Present — Callahan, J. P., Boomer, Pine, Boehm and Doerr, JJ.