Opinion
June 9, 1995
Appeal from the Supreme Court, Onondaga County, Mordue, J.
Present — Lawton, J.P., Fallon, Wesley, Davis and Boehm, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly refused to grant the motion of third-party defendant James E. Kirkpatrick to dismiss the causes of action for indemnity and contribution interposed against him by third-party plaintiffs in this Labor Law § 240 case. Third-party plaintiffs alleged in their pleadings that James Kirkpatrick exercised control and supervision over the work of plaintiff Timothy A. Kirkpatrick and failed to protect him adequately from injury. Those allegations are sufficient to defeat the motion to dismiss (see, Stimson v. Lapp Insulator Co., 186 A.D.2d 1052).
There is no merit to the contention that the court erred in converting the motion of Timothy and James Kirkpatrick to dismiss the second cause of action in the amended second third-party complaint to one for summary judgment without adequate notice to the parties. It is clear from the motion papers and arguments that the parties were "`deliberately charting a summary judgment course'" (Mihlovan v. Grozavu, 72 N.Y.2d 506, 508, quoting Four Seasons Hotels v. Vinnick, 127 A.D.2d 310, 320).
We conclude that the court properly dismissed third-party plaintiffs' contract cause of action. Although the parties' contract provided that "Workmen's [sic] Compensation and Public Liability Insurance" was to be taken out by Brothers Painting, it did not provide that third-party plaintiffs be named as insureds or additional insureds. Third-party plaintiffs, therefore, were not entitled to indemnification as a result of the failure of Brothers Painting to procure the insurance (see, American Home Assur. Co. v. Mainco Contr. Corp., 204 A.D.2d 500).
We have considered the remaining contentions and conclude that they are without merit.