GARCIA v. PEPSICO, INC

The trial court properly denied the motion and cross motion for summary judgment. Andy Lopes Building failed to establish, as a matter of law, that it was not negligent in securing the plywood form over the hole into which plaintiff is alleged to have fallen. Sentrale Contracting failed to establish, as a matter of law, that it was not responsible for directing or controlling the work performed by its subcontractor Andy Lopes Building (see Rodriguez v. Metro. Life Ins. Co., 234 A.D.2d 156,lv denied 652 N.Y.S.2d 502; cf., Ross v. Curtis-Palmer Hydro-Elec. Co., 295 A.D.2d 723, 724-725, lv denied 98 N.Y.2d 614; Tambaso v. Norton Co., 207 A.D.2d 618, appeal dismissed 85 N.Y.2d 857) and that the written indemnity/insurance procurement agreement produced by third-party plaintiff HRH Construction Corporation in opposition was not applicable.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.