                          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
                    Plaintiff-
                    Respondent-
                    Appellant;

WILSONS CONSTRUCTION, INC,                  MEMORANDUM AND ORDER
                    Third-Party
                    Defendant-
                    Respondent,
       and

CLYDE WILSON, Individually and
   Doing Business as WILSONS
   CONSTRUCTION,
                    Third-Party
                    Defendant and
                    Fourth-Party
                    Plaintiff-
                    Appellant-
                    Respondent;

ERIE INSURANCE COMPANY et al.,
                    Fourth-Party
                    Defendants-
                    Respondents-
                    Appellants.
________________________________


Calendar Date:   June 3, 2015
                               -2-                520563


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-appellant-
respondent.

      Kenney Shelton Liptak Nowak, LLP, Buffalo (Jessica L.
Foscolo of counsel), for fourth-party defendants-respondents-
appellants.

      Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Heather S.
Lanza of counsel), for defendant and third-party plaintiff-
respondent-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
                               -3-                520563

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
                              -4-                 520563

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 fourth-
party complaint, as well as a declaration that it was not
required to defend or indemnify Wilson. Rivercrest also cross-
moved 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.
                              -5-                520563

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
                              -6-                520563

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.
                              -7-                520563

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.
                        -8-                  520563

ORDERED that the amended order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
