Schelble v. ADF Construction Corp.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Defendants and third-party plaintiffs, ADF Construction Corp. (ADF) and Master Builders, Inc. (Master Builders), contend that Supreme Court erred in denying their cross motions for summary judgment for contractual and common-law indemnification against third-party defendant Steelcor Builders (Steelcor). We agree in part. Supreme Court should have granted the cross motions for contractual indemnification. The subcontract between ADF and Steelcor contains a broad indemnity clause under which Steel-cor is obligated to indemnify ADF and Master Builders against all claims arising out of the performance of work under the contract resulting from ADF’s breach of a statutory duty, including liability for injuries sustained by a Steelcor employee, regardless of the manner in which the injury occurred. General Obligations Law §5-322.1 does not preclude enforcement of the indemnification clause inasmuch as the liability of ADF and Master Builders is based on Labor Law § 240 (1), which imposes absolute liability (see, Brown v Two Exch. Plaza Partners, 76 NY2d 172, 178-181; Smith v Cassadaga Val. Cent. School Dist., 178 AD2d 955).

Supreme Court properly denied the cross motions insofar as they sought common-law indemnification because issues of fact exist whether ADF had control over the safety of workers performing steel erection work under the subcontract with Steelcor (see, Smith v Cassadaga Val. Cent. School Dist., supra).

Therefore, we modify the orders by granting the cross motions of ADF and Master Builders for summary judgment against Steelcor for contractual indemnification. Otherwise, the orders are affirmed. (Appeal from Order of Supreme Court, Erie County, Whelan, J.—Summary Judgment.) Present—Denman, P. J., Callahan, Lawton and Davis, JJ.