Opinion
December 23, 1994
Appeal from the Supreme Court, Monroe County, Kehoe, J.
Present — Green, J.P., Pine, Balio, Callahan and Boehm, JJ.
Order unanimously reversed on the law without costs and motions granted. Memorandum: Plaintiffs commenced this action asserting direct and derivative claims based on injuries sustained by plaintiff husband in a fall from a scaffold while he was performing electrical work at a renovation site. Plaintiffs sued defendant Farash Corporation, the general contractor, based on negligence and Labor Law violations. Defendant impleaded its subcontractor, Per-Con Electric Corp. (Per-Con), the employer, on a theory of common-law indemnification. Plaintiffs appeal from the order insofar as it denied their motion for partial summary judgment holding defendant liable pursuant to Labor Law § 240 (1). Defendant appeals from the order insofar as it denied its motion for summary judgment on its third-party complaint against Per-Con.
Plaintiffs are entitled to partial summary judgment. They established that the worker fell from the scaffold while ascending it (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494; Rocovich v Consolidated Edison Co., 78 N.Y.2d 509). Defendant failed to demonstrate the existence of a triable question of fact in opposition to the motion. Defendant's reliance on this Court's decision in Carlos v Rochester Gen. Hosp. ( 163 A.D.2d 894) is misplaced (see, e.g., Morris v Mark IV Constr. Co., 203 A.D.2d 922; Madigan v United Parcel Serv., 193 A.D.2d 1102, 1103; Halkias v Hamburg Cent: School Dist., 186 A.D.2d 1040).
Similarly, we conclude that defendant is entitled to summary judgment on the third-party complaint. Defendant demonstrated its entitlement to common-law indemnification by submitting competent evidence that it had no responsibility for the direction, supervision, or control of the worker, that its representatives were not present at the site, and that Per-Con had exclusive supervision and control over the work site and sole responsibility for providing safety devices (see, Stimson v Lapp Insulator Co., 186 A.D.2d 1052; Pietsch v Moog, Inc., 156 A.D.2d 1019).