Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Michael Kavanaugh (plaintiff) was injured when he slipped on a plank that served as a temporary stairway into the house where plaintiff was working. Supreme Court improperly granted plaintiffs' motion for partial summary judgment on liability on the Labor Law § 240 (1) cause of action and should have granted that part of the cross motion of defendant Marrano/Marc Equity Corporation (Marrano) seeking dismissal of that cause of action ( see, Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513-514).
The court also erred in denying the cross motion of Marrano insofar as it sought contractual and common-law indemnification against third-party defendant John T. Ball, Sr., doing business as J L Painting Decorating Company (Ball). The record establishes that Marrano is only vicariously liable under the Labor Law and is therefore entitled to a conditional judgment based upon common-law indemnification against Ball, who actually supervised, directed and controlled the work giving rise to plaintiff's injury ( see, Chapel v Mitchell, 84 N.Y.2d 345, 347; Gillmore v Duke/Fluor Daniel, 221 A.D.2d 938; Savigny v Marrano/Marc Equity Corp., 221 A.D.2d 942). Marrano is also entitled to a conditional judgment based upon contractual indemnification against Ball ( see, Brown v Two Exch. Plaza Partners, 76 N.Y.2d 172, 179-180; Savigny v Marrano/Marc Equity Corp., supra; cf., Gillmore v Duke/Fluor Daniel, supra). The contract between Marrano and Ball required Ball to indemnify Marrano against "all loss, damage, expense or claim of any nature arising out of performance of the work under [the] contract including injuries to persons", and Marrano established by proof in evidentiary form that the injuries sustained by plaintiff arose out of his performance of the work under the contract and that Marrano was not negligent.
We, therefore, modify the order on appeal by denying plaintiffs' motion for partial summary judgment on liability on the Labor Law § 240 (1) cause of action and granting that part of the cross motion of Marrano seeking dismissal of that cause of action and a conditional judgment against Ball based upon contractual and common-law indemnification.