HERNANDEZ v. TWO EAST END AVE. APT

ORDERED that the judgment is reversed, on the law, the motion of the defendant third-party plaintiff Mariano Construction Corp. is denied in its entirety, and that branch of the motion of the defendant third-party plaintiff Two East End Avenue Apartment Corp., which was for common-law indemnification is denied; and it is further,

ORDERED that the matter is remitted to the Supreme Court, Kings County, for a new trial before a different Justice on the issue of liability as to the defendant third-party plaintiff Mariano Construction Corp., and the third-party defendant, Lettire Construction Corp., and as to the claim of the defendant third-party plaintiff Two East End Avenue Apartment Corp., for common-law indemnification against the third-party defendant, Lettire Construction Corp.; and it is further,

ORDERED that the appeal from the order is dismissed as academic; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

A directed verdict is only appropriate "where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the non-moving party" (Szczerbiak v. Pilat, 90 N.Y.2d 553, 556; see Holt v. Welding Servs., 264 A.D.2d 562; Shpritzman v. Strong, 248 A.D.2d 524). A subcontractor may be obligated to indemnify under the common law upon proof that its actual negligence contributed to an accident, or, in the absence of any negligence, where it had the authority to direct, supervise, and control the work giving rise to the injury (see Hernandez v. Two E. End Ave. Apt. Corp., 271 A.D.2d 570, 571; Walker v. Trustees of Univ. of Pa., 262 A.D.2d 175, 176; Rodriguez v. Metropolitan Life Ins. Co., 234 A.D.2d 156; Terranova v. City of New York, 197 A.D.2d 402).

There is an issue of fact with respect to the negligence, if any, of both the appellant, Lettire Construction Corp., and the defendant third-party plaintiff Mariano Construction Corp. (hereinafter Mariano). There is also an issue of fact as to whether the appellant was the only entity with the authority to direct, supervise, and control the work giving rise to the injury, or whether Mariano had the authority to direct, supervise, and control the work. The resolution of these issues was dependent upon the credibility of the witnesses. Thus, the Supreme Court erred in granting Mariano's motion for judgment as a matter of law against the appellant on the issues of liability and indemnification (cf. Lopez v. 36-2nd J Corp., 211 A.D.2d 667, 668).

Similarly, it was error to grant the motion for judgment as a matter of law against the appellant and in favor of the defendant third-party plaintiff Two East End Avenue Apartment Corp. (hereinafter Two East End). There is no question of the absence of liability on the part of Two East End, which was not negligent and never directed or supervised the injured plaintiff's work. Two East End was held liable to the plaintiffs only because of its status as owner under Labor Law § 240(1). However, because the relative culpability between Mariano and the appellant presented questions of fact, it was premature to grant that branch of the motion of Two East End which was for summary judgment with respect to common-law indemnification against the appellant. Therefore, the judgment must be reversed.

In view of the foregoing, we need not reach the appellant's remaining contention regarding the entry of the judgment, and its final contention is without merit.

SMITH, J.P., GOLDSTEIN, CRANE and RIVERA, JJ., concur.