Guth v. Mutual of New York

—Order unanimously reversed on the law with costs and motion and cross motion granted. Memorandum: Supreme Court erred (1) in denying the motion of plaintiff for partial summary judgment on the issue of liability in this Labor Law § 240 (1) action and (2) in denying the cross motion of defendant and third-party plaintiff, Mutual of New York (MONY), for summary judgment against third-party defendant, Allwash of Syracuse, Inc., on the issue of indemnity. The evidence submitted demonstrates that, while plaintiff was working on a scaffold, he ducked under an exposed pipe, stepped off the scaffold, and fell. Defendant concedes that the "scaffold did not provide proper protection within the requirements of Labor Law section 240” (see, Rocovich v Consolidated Edison Co., 78 NY2d 509, 513). The record establishes that MONY did not have control or supervision over either the work or plaintiff. An owner or contractor is entitled to common-law indemnification from the employer when the liability of the owner or contractor is purely statutory and based solely on its status (Mas v Two Bridges Assocs., 75 NY2d 680; Pietsch v Moog, Inc., 156 AD2d 1019). (Appeals from Order of Supreme Court, Onondaga County, Hayes, J.:—Labor Law § 240 [1].) Present—Green, J. P., Pine, Fallon, Callahan and Davis, JJ.