State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 16, 2015 520563 

________________________________

CARL HACKERT et al.,

Plaintiffs,

v

EMMANUEL CONGREGATIONAL 

UNITED CHURCH OF CHRIST,

Defendant,

 and

RIVERCREST ENTERPRISES, INC.,

Defendant and

Third-Party

PlaintiffRespondentAppellant;

WILSONS CONSTRUCTION, INC, MEMORANDUM AND ORDER

Third-Party

DefendantRespondent,

 and

CLYDE WILSON, Individually and

Doing Business as WILSONS

CONSTRUCTION,

Third-Party

Defendant and

Fourth-Party

PlaintiffAppellantRespondent;

ERIE INSURANCE COMPANY et al.,

Fourth-Party

DefendantsRespondentsAppellants.

________________________________

Calendar Date: June 3, 2015
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Before: Peters, P.J., McCarthy, Egan Jr. and Rose, JJ.

__________

Flink Smith Law, Albany (Edward B. Flink of counsel), for

third-party defendant and fourth-party plaintiff-appellantrespondent.

Kenney Shelton Liptak Nowak, LLP, Buffalo (Jessica L.

Foscolo of counsel), for fourth-party defendants-respondentsappellants.

Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Heather S.

Lanza of counsel), for defendant and third-party plaintiffrespondent-appellant.

__________

Egan Jr., J.

Cross appeals from an amended order of the Supreme Court

(Ferradino, J.), entered April 24, 2014 in Saratoga County,

which, among other things, denied a motion by third-party

defendant Clyde Wilson for, among other things, summary judgment

dismissing the third-party complaint against him.

Defendant Rivercrest Enterprises, Inc. was hired as the

general contractor to rebuild a church owned by defendant

Emmanuel Congregational Church of Christ and located in the

Village of Massena, St. Lawrence County after the church was

damaged by a fire sparked by a lightning strike. Rivercrest

employed its own workers on the project, who, in turn, were

supervised on a daily basis by third-party defendant Clyde

Wilson. In addition to the structural damage resulting from the

fire, the church's pipe organ was damaged beyond repair,

prompting the church to retain the services of Church Organ

Sales, Inc. to provide and install a new digital organ for the

premises. Plaintiff Carl Hackert, the president and sole
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employee of that corporation, hired Darrell Helms, who was

performing certain audio and visual work for the church, to

install the speaker cables for the new organ.

During the course of the renovations, there was a hole in

the flooring of the church that apparently was utilized by

Rivercrest employees and various subcontractors to pass building

materials from the basement of the church up to the main level of

the structure.1 Although the hole was covered with a piece of

plywood, the plywood was not nailed or screwed into place –

again, apparently to facilitate the movement and transfer of

building materials. According to Wilson, although he was not in

favor of this practice, he eventually acquiesced and placed

Darren Caldwell, one of Rivercrest's employees, in charge of

"mak[ing] sure [the] hole was covered every night before he left

the church."

On July 15, 2009, Hackert and Helms spent several hours

pulling wire and cable through existing conduits for the various

organ components. At approximately 5:30 p.m. that day, Hackert

was in the process of measuring wire on the main level of the

church. Although Hackert generally was aware of the existence

and location of the hole in the flooring, he had no particular

recollection of observing it that day. As Hackert – still

measuring lengths of wire – walked backwards toward the opening,

he fell through to the basement level, sustaining serious

injuries.

Hackert and his spouse, derivatively, thereafter commenced

this Labor Law action against the church and Rivercrest;

Rivercrest impleaded Wilson and third-party defendant Wilsons

Construction, Inc.2 and Wilson, in turn, commenced a fourth-party

1 Apparently the location of the staging area and the

layout of the church itself made for difficulties in getting

certain materials, such as dimensional lumber, into the actual

structure via the doors to the church.

2 According to Wilson, although he continues to do business

as Wilsons Construction, the corporate entity – Wilsons
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action against, among another, Rivercrest's insurance carrier,

Eric Insurance Company (hereinafter the carrier).3 Following

joinder of issue, discovery and the settlement of the main action

against Rivercrest and the church, Wilson moved for summary

judgment dismissing the third-party complaint against him and,

additionally, summary judgment in his favor on the fourth-party

action – specifically, a declaration that he was an employee of

Rivercrest and, as such, was entitled to a defense and

indemnification under Rivercrest's policy with its carrier. The

carrier cross-moved for summary judgment dismissing the fourthparty complaint, as well as a declaration that it was not

required to defend or indemnify Wilson. Rivercrest also crossmoved for summary judgment seeking, among other things,

indemnification from Wilson based upon his alleged status as an

independent contractor. Finally, Wilson cross-moved for leave to

amend his third-party answer. Supreme Court denied the

respective motions for summary judgment finding, among other

things, a question of fact as to Wilson's employment status and

granted Wilson's cross motion to amend his third-party answer. 

These appeals by Rivercrest, Wilson and the carrier ensued.

We affirm. As for Wilson's and Rivercrest's respective

motions for summary judgment relative to Rivercrest's entitlement

to common-law indemnification, we agree with Supreme Court that

questions of fact preclude an award of such relief to either

party. "The principle of common-law, or implied indemnification,

permits one who has been compelled to pay for the wrong of

another to recover from the wrongdoer the damages it paid to the

injured party. Since the predicate of common-law indemnity is

vicarious liability without actual fault on the part of the

proposed indemnitee, it follows that a party who has itself

actually participated to some degree in the wrongdoing cannot

Construction, Inc. – no longer is in existence.

3 Wilson named Erie Insurance Company and Erie Insurance

Company of New York as fourth-party defendants, but the brief

filed by fourth-party defendants asserts that the subject policy

was issued by Erie Insurance Company and, hence, Erie Insurance

Company of New York is not a proper fourth-party defendant.
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receive the benefit of the doctrine" (Genessee/Wyoming YMCA v

Bovis Lend Lease LMB, Inc., 98 AD3d 1242, 1244-1245 [2012]

[internal quotation marks and citations omitted]). Accordingly,

in order "[t]o establish a claim for common-law indemnification,

the party seeking indemnity must prove not only that it was not

guilty of any negligence beyond the statutory liability, but must

also prove that the proposed indemnitor was guilty of some

negligence that contributed to the cause of the accident"

(Mikelatos v Theofilaktidis, 105 AD3d 822, 824 [2013]).

Initially, to the extent that Rivercrest contends that

Supreme Court erred in finding that a question of fact exists as

to Wilson's employment status, we disagree. To be sure, there

indeed is evidence in the record – including those portions of

Wilson's examination before trial testimony wherein he

acknowledged that he was not covered under Rivercrest's workers'

compensation and/or unemployment insurance policies and that

Rivercrest issued him a 1099 (as opposed to a W-2) form at the

end of each year – from which a jury reasonably could conclude

that Wilson was, as Rivercrest argues, an independent contractor. 

That said, there also is evidence in the record – including

Wilson's affidavit, wherein he averred that, among other things,

he had worked exclusively for Rivercrest from the mid-1990s until

July 2012 and that Rivercrest, in addition to paying the premium

on his general liability policy, provided him with a company cell

phone and a one-week paid vacation – from which a jury could find

that Wilson was an employee of Rivercrest. In light of the

conflicting proof on this point, Supreme Court did not err in

finding a question of fact as to Wilson's employment status.

As to the substance of the indemnification issue, we agree

with Supreme Court that neither Rivercrest nor Wilson is entitled

to summary judgment, as the record reveals questions of fact as

to the role of, among others, Caldwell (the Rivercrest employee

allegedly tasked with ensuring that the hole was covered each

night) and Wilson in bringing about the injury-producing event. 

With respect to Rivercrest, the case law makes clear that "where

a settling party is at least partially responsible for the

plaintiff's damages because of its own negligence, such party may

not seek indemnification from other tortfeasors. The critical

issue is thus whether the liability of the settling part[y] was
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entirely derivative or whether [it] also had some role in the

event that actually caused the injury" (Brazell v Wells Fargo

Home Mtge., Inc., 42 AD3d 409, 410 [2007] [citations omitted]).

Even assuming, for purposes of Rivercrest's cross motion,

that Wilson indeed was an independent contractor, the record

contains proof from which a jury reasonably could conclude that

Rivercrest – through either Caldwell or its president, Vance

Fleury4 – was affirmatively negligent in allowing the hole in the

flooring to remain uncovered. Hence, Rivercrest failed to

satisfy the first prong of the indemnification test – namely,

establishing that its liability was entirely derivative. As to

the second prong of the test, i.e., establishing that Wilson, as

the proposed indemnitor, was guilty of some negligence that

contributed to Hackert's accident, we agree with Supreme Court

that, in light of Wilson's role as the supervisor for the project

and responsibility for safety on the job site, questions of fact

remain as to whether – despite Wilson's protestations to the

contrary – he, too, engaged in wrongdoing. For all of these

reasons, Supreme Court correctly denied Rivercrest's cross motion

for summary judgment seeking indemnification from Wilson.

We reach a similar conclusion regarding Wilson's motion for

summary judgment dismissing Rivercrest's third-party complaint. 

The proof tendered by Wilson in support of his motion – most

notably, his testimony regarding statements allegedly made by

Caldwell upon being advised of Hackert's accident – falls short

of establishing Rivercrest's negligence as a matter of law. More

to the point, and for the reasons previously discussed, it

4 The record contains proof from which it may be inferred

that Fleury was on the job site on a frequent basis, during which

time Fleury would, among other things, check to ensure that his

workers were "using the proper safety" procedures or equipment. 

As to the hole in the flooring, Fleury testified at his

examination before trial that, when the opening was not being

used to facilitate the movement of building materials, it not

only should have been covered with a piece of plywood but,

further, that piece of plywood should have been screwed into

place.
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remains for a jury to determine whether Wilson was, among other

things, solely at fault in bringing about Hackert's injuries.

As for the carrier's cross motion for summary judgment

dismissing the fourth-party complaint, the crux of the carrier's

argument in this regard is that Wilson is an independent

contractor – not an employee of Rivercrest – and, hence, Wilson

does not qualify as an insured under the subject policy. To the

extent that the carrier's argument relies upon the standard

indicia of an employer-employee relationship, as noted

previously, the record contains a question of fact as to whether

Wilson was an employee of Rivercrest or an independent

contractor, and we do not find the carrier's underwriting

documents, which list Wilson's Construction as a subcontractor,

to be dispositive of this issue. Accordingly, the carrier's

cross motion was properly denied.

Finally, we cannot say that Supreme Court abused its

discretion in granting Wilson leave to amend his answer to

correct what he contends was an inadvertent error in admitting

his status as an independent contractor. The record reflects

that Wilson's status as an employee or independent contractor was

explored at length during the course of Wilson's July 2011

examination before trial and, hence, we reject Rivercrest's claim

that it was prejudiced by any delay in this regard. The parties'

remaining contentions, to the extent not specifically addressed,

have been examined and found to be lacking in merit.

Peters, P.J., McCarthy and Rose, JJ., concur.
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ORDERED that the amended order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court