Baskewicz v. Rochester Gas & Electric Corp.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied that part of the cross motion of third-party plaintiffs, Rochester Gas & Electric Corporation (RG&E) and Fast Trak Structures, Inc. (Fast Trak), seeking conditional summary judgment on their third-party claims for contractual indemnification against third-party defendant Solar Wind Energy Systems, Ltd. (Solar Wind). Because a question of fact exists whether the injuries of Lawrence J. Baskewicz (plaintiff) were caused by a negligent act of Solar Wind, Fast Trak is not entitled to a conditional judgment for contractual indemnification against Solar Wind (see, Hayes v Crane Hogan Structural Sys., 191 AD2d 978, 979; Stimson v Lapp Insulator Co., 186 AD2d 1052, 1053). RG&E is not entitled to contractual indemnification against Solar Wind because the contract between Fast Trak and Solar Wind did not expressly state that they intended their contract to benefit RG&E (see, Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652, 656; cf., Ralston Purina Co. v McKee & Co., 158 AD2d 969, 970). The court erred, however, in denying that part of the cross motion of RG&E and Fast Trak seeking conditional summary judgment on their third-party claims for common-law indemnification against Solar Wind. There is no evidence that RG&E or Fast Trak controlled, directed or supervised plaintiffs work. Solar Wind alone was responsible for directing plaintiffs work and providing the ladder from which plaintiff fell. Absent proof that the liability of RG&E and Fast Trak was other than vicarious, their cross motion for conditional summary judgment should have been granted (see, Loper v City of Rochester, 209 AD2d 1052; Paterson v Hennessy, 206 AD2d 919). Thus, we modify the order on appeal by granting that part of the cross motion of RG&E and Fast Trak for conditional summary judgment on their third-party claims for common-law indemnification against Solar Wind. (Appeal from Order of Supreme Court, Monroe County, Siragusa, J.—Summary Judgment.) Present— Denman, P. J., Fallon, Wesley, Doerr and Balio, JJ.