Guinter v I. Park Lake Success, LLC

Guinter v I. Park Lake Success, LLC 2009 NY Slip Op 07927 [67 AD3d 406] November 5, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

John Guinter, Plaintiff,
v
I. Park Lake Success, LLC, et al., Defendants and Third-Party Plaintiffs-Appellants. Rivco Construction Corp., Third-Party Defendant-Respondent.

—[*1] Conway, Farrell, Curtin & Kelly, P.C., New York (Keith D. Grace of counsel), for appellants.

Melito & Adolfsen, P.C., New York (Robert D. Ely of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered on or about June 16, 2009, which, to the extent appealed from, granted third-party defendant's motion for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.

Given that third-party plaintiff Ball, as contractor, retained authority over the work site and actually performed the cleanup and maintenance, third-party defendant subcontractor owed it no duty to maintain the site (Lopez v Consolidated Edison Co. of N.Y., 40 NY2d 605 [1976]). While the subcontractor was liable to indemnify for injury resulting from its own acts or omissions, it was not liable, as a matter of law, for injury manifestly caused by the contractor's maintenance of a debris pile. Concur—Tom, J.P., Saxe, Renwick, DeGrasse and Richter, JJ.