Opinion
July 15, 1994
Appeal from the Supreme Court, Erie County, Whelan, J.
Present — Balio, J.P., Lawton, Callahan, Doerr and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed with costs to third-party plaintiff in accordance with the following Memorandum: Plaintiff, while placing siding on a home under construction, fell 12 feet to the ground when the plank on which he was standing slipped off one of the ladder sections supporting it. Partial summary judgment was properly granted in his favor against the general contractor, defendant and third-party plaintiff, D G Builders, Inc. (D G). Plaintiff's fall and its cause are undisputed. D G's bare assertions that the evidence was inconclusive to establish a violation of Labor Law § 240 (1) and that plaintiff was a "recalcitrant worker" are insufficient to create a question of fact (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555; Allman v. Ciminelli Constr. Co., 184 A.D.2d 1022).
Supreme Court should have granted the cross motion of D G against plaintiff's employer, third-party defendant, Patrick White, doing business as Patrick White Construction (White), the subcontractor for the siding work. Periodic inspection of the progress of the work by D G was insufficient to establish its control or supervision over the siding work or the manner of its performance (see, Hayes v. Crane Hogan Structural Sys., 191 A.D.2d 978; Damon v. Starkweather, 185 A.D.2d 633). In the absence of proof that its liability was other than vicarious, D G was entitled to summary judgment on its common-law indemnification claim against White (see, Allman v. Ciminelli Constr. Co., supra).