DEFENDANT WAS NOT SHOWN TO BE NEGLIGENT OR TO HAVE EXERCISED SUPERVISION AND CONTROL OVER THE INJURY-PRODUCING WORK; SCHEDULING AND COORDINATING WORK DOES NOT CONSTITUTE SUPERVISON AND CONTROL; THE COMMON-LAW INDEMNIFICATION AND CONTRIBUTION CLAIMS SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the common-law indemnification action against defendant Ergonomic should have been granted because Ergonomic was not shown to be negligent or to have exercised supervisory control over the injury-producing work. Portions of the floor were removed to access cables. Plaintiff alleged a leg of his ladder went into an area where the floor had been removed, causing him to fall. The First Department noted that coordinating and scheduling work does not rise to the level of supervision and control:

Ergonomic’s motion for summary judgment dismissing Owner Defendants’ third-party claims for common-law indemnification and contribution should have been granted. There was no evidence that Ergonomic was negligent or that it exercised actual supervision or control over the injury-producing work. Ergonomic did not perform any of the physical work and was not onsite at the time of the accident. To the extent it might have had authority to supervise the injury producing work, it never exercised such authority, but rather, had subcontracted such contractual duties to Quick, which actually directed and supervised the work … . The fact that Ergonomic scheduled and coordinated Quick’s and Atlas’s work is insufficient to give rise to liability, as the coordinating and scheduling of trades at work sites do not rise to the level of supervision and control necessary to impose liability under a negligence theory … . Balcazar v Commet 380, Inc., 2021 NY Slip Op 06030, First Dept 11-4-21