Douglas S. Edmond et al., Plaintiffs, v. Streeter Associates, Inc., Defendant and Third-Party Plaintiff-Appellant. R.W. Dake and Company, Inc., Third-Party Defendant-Respondent

Douglas S. Edmond et al., Plaintiffs, v Streeter Associates, Inc., Defendant and Third-Party Plaintiff-Appellant. R.W. Dake and Company, Inc., Third-Party Defendant-Respondent. [617 NYS2d 693] [MAJORITY] —Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied the motion of Streeter Associates, Inc. (Streeter) for summary judgment on its third-party action for contractual and common-law indemnification against R.W. Dake & Company, Inc. (Dake). Streeter is entitled to indemnification under its subcontract with Bake only if plaintiffs’ claims against Streeter arise out of or result from the performance of Bake’s work under the subcontract. There are questions of fact whether plaintiff Douglas S. Edmond was performing drywall repair work pursuant to Bake’s subcontract with Streeter or pursuant to a separate contract between Bake and another subcontractor. There are also questions of fact whether Streeter exercised supervision or control over that drywall repair work (cf., Damon v Starkweather, 185 AD2d 633). (Appeal from Order of Supreme Court, Livingston County, Cicoria, J.—Indemnification.) Present—Denman, P. J., Green, Fallon, Callahan and Boehm, JJ.