Harzewski v. Centennial Development, Ltd. , 765 N.Y.S.2d 534 ( 2003 )

Appeal from an order of Supreme Court, Niagara County (Fricano, J.), entered February 12, 2002, which granted the motion of defendant Centennial Development, Ltd. for partial summary judgment seeking common-law indemnification from defendant Robert Zulick, individually and doing business as J & W Cleaning.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is denied.

Memorandum: Supreme Court erred in granting the motion of defendant Centennial Development, Ltd. (Centennial) for partial summary judgment seeking common-law indemnification from defendant Robert Zulick, individually and doing business as J & W Cleaning. We previously held that Centennial, the owner of the building where plaintiff was injured when he fell while cleaning exterior windows, is liable to plaintiff under Labor Law § 240 (1) (see Harzewski v Centennial Dev., 270 AD2d 888 [2000]). However, Centennial failed to establish as a matter of law that Zulick, a subcontractor, actually supervised, directed or controlled plaintiff’s work (see Delaney v Spiegel Assoc., 225 AD2d 1102, 1103 [1996]). Consequently, we reverse the order and deny Centennial’s motion. Present — Green, J.P., Hurlbutt, Gorski, Lawton and Hayes, JJ.