Cohen v. Rockefeller Center, Inc. , 733 N.Y.S.2d 607 ( 2001 )

Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about April 12, 2001, which, inter alia, (1) upon reargument, granted the motion of third-party defendant JWP Forest Electric Corp. summary judgment dismissing defendant third-party plaintiff Herbert Construction Company’s claim against it for contractual indemnification, (2) granted Time Warner’s motion and Herbert Construction’s cross motion for summary judgment insofar as to dismiss plaintiffs’ Labor Law § 241 (6) claims as against them, and (3) denied Time Warner’s motion for summary judgment on its cross claims against Forest Electric, Herbert and Curtis Partition Corporation for common-law indemnification, unanimously modified, on the law and upon a search of the record, to the extent of awarding summary judgment to defendant Bozzell Worldwide, Inc. dismissing plaintiff’s Labor Law § 241 (6) claims against it, and of granting Time Warner’s motion to the further extent of granting it summary judgment upon its cross claim for common-law indemnification from Curtis, and otherwise affirmed, without costs.

The motion court correctly found on reargument that plaintiff was not injured while engaged in work covered by the subcontract between Forest Electric and Herbert and, accordingly, that Herbert is not entitled to contractual indemnification pursuant to that subcontract. Our prior order in this matter (284 AD2d 177), affirming the motion court’s original determination that there were factual issues as to whether plaintiff’s work at the time of the accident was covered by the subcontract, is thus superseded herein on the record presented to us now.

Insofar as the Industrial Code section relied on by plaintiffs is inapplicable to the facts at bar, there is no basis to sustain their Labor Law § 241 (6) claim against any of the parties. Accordingly, defendant Bozzell is„ entitled to dismissal of this claim. We further modify to grant defendant Time Warner summary judgment upon its cross claim for common-law indemnification against Curtis since the liability of Time Warner, the owner of the premises at which plaintiff was injured, is purely statutory and the record establishes that it was the negligence of a Curtis employee that caused plaintiff’s harm (see, Leon v J & M Peppe Realty Corp., 190 AD2d 400, 411).

We have examined the parties’ remaining arguments for affirmative relief and find them unavailing. Concur — Rosenberger, J. P., Nardelli, Mazzarelli, Wallach and Marlow, JJ.