DECISION ORDER
ORDERED that the appeal from the order dated June 19, 1998, is dismissed, as that order was superseded by the resettled order; and it is further,
ORDERED that the resettled order is affirmed insofar as reviewed; and it is further,
ORDERED that the respondents are awarded one bill of costs.
The plaintiff, who was working at a construction site, was injured when he fell from a ladder. He brought suit against the general contractor S.J. Rehab Corp., Port Washington Rehab Associates, and S.J. Rehab Corp. d/b/a Port Washington Associates (hereinafter collectively PWRA), the owner, Landmark on Main Street Housing Fund Development Corp. (hereinafter Landmark), and a subcontractor, Kowal Industries, Inc. (hereinafter Kowal), alleging, inter alia, that the ladder was defective. Landmark and PWRA cross-claimed against Kowal and brought a third-party action against the plaintiff's employer, Themis Industries, Ltd. Subsequently, the plaintiff moved for and obtained partial summary judgment on the issue of liability under Labor Law § 240 Lab., on the ground that he fell from an unsecured ladder. Landmark and PWRA cross-moved for summary judgment on their cross claims and third-party complaint. Their motion was denied on the ground that ownership of the ladder was not established.
The Supreme Court correctly denied that branch of the cross motion which was for summary judgment on the appellants' claims for contractual indemnification and common-law indemnification, since it is unclear whether they were at fault in the happening of the accident (see, Itri Brick Concrete Corp., Co. v. Aetna Cas. Sur. Co., 89 N.Y.2d 786, 795 ; Kagan v. Jacobs, 260 A.D.2d 442 [2d Dept., Apr. 12, 1999]).
Although Themis Industries, Inc., conceded that there was "no evidence of control or supervision over the work" by Landmark, there is no evidence that Landmark did not own the allegedly defective ladder. Landmark's fault could be predicated upon actual or constructive notice of a dangerous condition, such as a defective ladder present on the site (see, Higgins v. 1790 Broadway Assocs., 261 A.D.2d 223 [1st Dept., May 18, 1999]; cf., Giambalvo v. Chemical Bank, 260 A.D.2d 432 [2d Dept., Apr. 12, 1999]).
Further, the Supreme Court properly denied summary judgment to Landmark and PWRA against Kowal for Kowal's alleged breach of an agreement to provide insurance, with leave to renew after resolution of a declaratory judgment action brought by Landmark and PWRA against the insurance carrier for a judgment declaring that the insurance carrier has a duty to defend and indemnify for the loss. The appellants have taken inconsistent positions in the instant action and the declaratory judgment action against the insurance carrier, which, under the circumstances of the instant case, precludes granting them summary judgment at this juncture (see, Unisys Corp. v. Hercules Inc., 224 A.D.2d 365, 367 ; see also,Douglas v. Government Empls. Ins. Co., 237 A.D.2d 246 ).
JOY, J.P., FRIEDMANN, GOLDSTEIN, and McGINITY, JJ., concur.