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McCarthy v. Turner Construction

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 20, 2010

JOHN MCCARTHY, ET AL., PLAINTIFFS,
v.
TURNER CONSTRUCTION, INC., DEFENDANT,
JOHN GALLIN & SON, INC., DEFENDANT-RESPONDENT,
BOSTON PROPERTIES, INC., ET AL., DEFENDANTS-APPELLANTS. [AND OTHER ACTIONS]

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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Sweeny, Renwick, Abdus-Salaam, Manzanet-Daniels, JJ.

107959/05, 590132/06, 590371/06

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 directly supervised and controlled plaintiff's work (see Reilly v DiGiacomo & Son, 261 AD2d 318 [1999]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100420

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