        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

420
CA 13-01620
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


JARED A. HOFFERT, PLAINTIFF,

                    V                              MEMORANDUM AND ORDER

JEFFREY M. KATZ, DEFENDANT-APPELLANT-RESPONDENT,
CROYLE, INC., DEFENDANT-RESPONDENT-APPELLANT,
SEN BROS. ENTERPRISES, INC., DOING BUSINESS
AS GNS CONSTRUCTION, DEFENDANT-RESPONDENT,
ET AL., DEFENDANTS.


WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, WHITE PLAINS (CARY
MAYNARD OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (EDWARD J. SMITH, III,
OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.

RICHARD P. PLOCHOCKI, SYRACUSE, FOR DEFENDANT-RESPONDENT.


     Appeal and cross appeal from an order and judgment (one paper) of
the Supreme Court, Oneida County (Samuel D. Hester, J.), entered
November 21, 2012. The order and judgment denied and dismissed all
cross claims between and among defendants Jeffrey M. Katz, Croyle,
Inc., and Sen Bros. Enterprises, Inc., doing business as GNS
Construction.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: Defendant Jeffrey M. Katz appeals and defendant
Croyle, Inc. (Croyle) cross-appeals from an order and judgment
rendered after a nonjury trial that denied and dismissed all of the
cross claims. We affirm for reasons stated in the decision at Supreme
Court. We add only that we agree with Croyle that the court erred in
concluding that Croyle was not entitled to indemnification from Katz
for its defense costs, including attorneys’ fees, absent a contractual
or statutory basis, but we nevertheless affirm. The “common-law right
of indemnification against the party actually at fault encompasses the
right to recover attorneys’ fees, costs, and disbursements incurred in
connection with defending the suit brought by the injured party”
(Chapel v Mitchell, 84 NY2d 345, 347). It is well settled, however,
that common-law indemnification may be imposed against only those
parties, i.e., indemnitors, who “actually directed and supervised the
work” (McCarthy v Turner Constr., Inc., 17 NY3d 369, 378). Here, the
record establishes that plaintiff’s employer exclusively directed and
                                 -2-                           420
                                                         CA 13-01620

supervised the injury-producing work, and Croyle is therefore not
entitled to common-law indemnification from Katz (see generally
Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 850-851, lv dismissed
8 NY3d 841).




Entered: June 20, 2014                         Frances E. Cafarell
                                               Clerk of the Court
