McCarthy v Turner Constr., Inc.

McCarthy v Turner Constr., Inc. 2010 NY Slip Op 03176 [72 AD3d 539] April 20, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 9, 2010

John McCarthy et al., Plaintiffs,
v
Turner Construction, Inc., Defendant, and John Gallin & Son, Inc., Respondent, and Boston Properties, Inc., et al., Appellants. (And Other Actions.)

—[*1] Law Offices of James J. Toomey, New York (Eric P. Tosca of counsel), for appellants.

Malapero & Prisco, LLP, New York (Frank J. Lombardo of counsel), for respondent.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered September 9, 2009, which denied the motion of defendants owners Boston Properties, Inc. and Times Square Tower Associates, LLC for summary judgment on their cross claim for contribution and common-law indemnification against defendant general contractor John Gallin & Son, Inc., and awarded Gallin summary judgment dismissing the cross claim, unanimously affirmed, without costs.

While the owners, whose liability for plaintiff's injuries was purely statutory, were entitled to contribution or indemnification from the party responsible for the injuries (Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1 [1974]), Gallin neither was negligent nor [*2]directly supervised and controlled plaintiff's work (see Reilly v DiGiacomo & Son, 261 AD2d 318 [1999]). Concur—Andrias, J.P., Sweeny, Renwick, Abdus-Salaam and Manzanet-Daniels, JJ. [Prior Case History: 24 Misc 3d 1245(A), 2009 NY Slip Op 51889(U).]