Opinion
570909/05.
Decided May 11, 2006.
Defendant ERC Restoration, LLC. appeals from so much of an order of the Civil Court, New York County (Saliann Scarpulla, J.), dated April 18, 2005, as denied its motion for summary judgment dismissing the complaint and all cross claims asserted against it.
Order (Saliann Scarpulla, J.), dated April 18, 2005, affirmed, with $10 costs.
PRESENT: DAVIS, J.P., GANGEL-JACOB, J.
Plaintiff, a tenant at an apartment building owned by defendants Ansonia Associates, Inc. and Ansonia Associates General Partnership (building owners), commenced this action for personal injuries allegedly sustained as a result of exterior restoration work to the building performed by defendant ERC Restoration, LLC., ("ERC"). ERC seeks summary judgment dismissal of the complaint, arguing that plaintiff failed to set forth a prima facie case of negligence against it, and that it was not responsible for any work performed by its subcontractor, nonparty Saxony Restoration Corp., an "independent contractor".
Civil Court properly denied ERC's motion for summary judgment. In view of ERC's contractual obligations to the building owners, which included the "supervision and control" of the work and its "methods and means," together with the deposition testimony of ERC's president that he visited the worksite and assessed the subcontractor's work, triable issues exist as to whether ERC failed to properly supervise the subcontractor's work and/or exercised sufficient control over the subcontractor to be responsible for its performance of the work ( see Wright v. Esplanade Gardens, 150 AD2d 197). Moreover, "given the issues of fact as to whether [ERC's] failure to exercise due care in the performance of the contract with the owner created an unreasonable risk of harm to plaintiff, it does not avail [ERC] to argue that the contract imposed no duty of care to plaintiff" ( see Daitch v. Naman, 25 AD3d 458).
We reject the building owners' request to search the record and grant summary judgment on their contractual indemnification claim against ERC, there being issues of fact as to whether the owners had notice of the existence of the alleged dangerous condition which caused plaintiff's injuries ( see e.g. Marcinak v. Technical Mechanical Servs., Inc., 17 AD3d 140).
This constitutes the decision and order of the court.