Frank v. Meadowlakes Development Corp.

Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (John A. Michalek, J.), entered February 12, 2004 in a personal injury action. The order and judgment, inter alia, granted judgment in the amount of $1,552,160 in favor of third-party plaintiff Meadowlakes Development Corporation and against third-party defendant Home Insulation and Supply, Inc.

It is hereby ordered that the order and judgment so appealed from be and the same hereby is affirmed without costs.

Memorandum: As we set forth in a prior appeal, plaintiffs commenced this Labor Law and common-law negligence action after Stephen R. Frank (plaintiff) fell from a temporary staircase while carrying insulation to the second floor of a home under construction (Frank v Meadowlakes Dev. Corp., 256 AD2d 1141 [1998]). After a trial, a jury apportioned liability 10% to plaintiff; 10% to third-party defendant Home Insulation and Supply, Inc. (Home), plaintiffs employer at the time of the accident; and 80% to defendant D.J.H. Enterprises, Inc., doing business as Danni-Marr Builders (DJH), the general contractor. Defendant-third-party plaintiff Meadowlakes Development Corporation (Meadowlakes) was held liable pursuant to Labor Law § 240 (1) as an owner, and, after the trial, Supreme Court granted the motion of Meadowlakes for common-law indemnification against Home and DJH. DJH and Meadowlakes subsequently settled with plaintiffs. Home now appeals from an order and judgment that, inter alia, granted Meadowlakes a money judgment against Home for the amount that Meadowlakes paid in its settlement with plaintiffs and its fees as well as disbursements in defense of the action, plus interest.

The court properly denied Home’s motion for a directed verdict dismissing the third-party complaint. The contention of Home that there is no basis in the record to allocate any fault to it is without merit. Home had the responsibility to instruct, train, equip, and supervise plaintiff (see Golda v Hutchinson Enters., 247 AD2d 863 [1998]; see also Murphy v Islat Assoc. Graft Hat Mfg. Co., 264 AD2d 583, 584-585 [1999]; see generally Felker v Corning Inc., 90 NY2d 219, 226 [1997]). Although Home contends that it was not negligent because it did not build the staircase nor was it responsible to do so, Home had overall responsibility for plaintiff. The court properly submitted to the jury the question whether Home was at fault for the accident (see Frank, 256 AD2d at 1143).

Home further contends that Meadowlakes is not entitled to recover from Home the full amount it paid to plaintiffs, but rather is limited to only 10% of that amount, representing Home’s proportionate share of liability. We disagree. It is well settled that “an owner or general contractor who is held strictly liable under Labor Law § 240 (1) is entitled to full indemnification from the party actually responsible for the incident” (Gillmore v Duke/Fluor Daniel, 221 AD2d 938, 939 [1995]). The principles of common-law indemnification allow the party held vicariously liable to shift the entire burden of the loss to the actual wrongdoer (see Mas v Two Bridges Assoc., 75 NY2d 680, 690 [1990]; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 567-568 [1987]; 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80 [1999]; see also Rogers v Dorchester Assoc., 32 NY2d 553, 565 n 2 [1973]). Contrary to Home’s contention, “CPLR article 16 does not limit the owner’s right of indemnification” because of the savings provision for indemnification claims set forth in CPLR 1602 (2) (ii) (Salamone v Wincaf Props., 9 AD3d 127, 129 [2004], lv dismissed 4 NY3d 794 [2005]).

All concur except Green, J.P., and Hurlbutt, J., who dissent in part and vote to modify in accordance with the following memorandum: