
    Michael Kavanaugh et al., Respondents, v Marrano/Marc Equity Corp., Appellant and Third-Party Plaintiff-Appellant. John T. Ball, Sr., Doing Business as J & L Painting & Decorating Company, Third-Party Defendant-Respondent-Appellant.
    [639 NYS2d 772]
   The court also erred in denying the cross motion of Marrano insofar as it sought contractual and common-law indemnification against third-party defendant John T. Ball, Sr., doing business as J & L Painting & Decorating Company (Ball). The record establishes that Marrano is only vicariously liable under the Labor Law and is therefore entitled to a conditional judgment based upon common-law indemnification against Ball, who actually supervised, directed and controlled the work giving rise to plaintiff’s injury (see, Chapel v Mitchell, 84 NY2d 345, 347; Gillmore v Duke/ Fluor Daniel, 221 AD2d 938; Savigny v Marrano/ Marc Equity Corp., 221 AD2d 942). Marrano is also entitled to a conditional judgment based upon contractual indemnification against Ball (see, Brown v Two Exch. Plaza Partners, 76 NY2d 172, 179-180; Savigny v Marrano/ Marc Equity Corp., supra; cf., Gillmore v Duke/ Fluor Daniel, supra). The contract between Marrano and Ball required Ball to indemnify Marrano against "all loss, damage, expense or claim of any nature arising out of performance of the work under [the] contract including injuries to persons”, and Marrano established by proof in evidentiary form that the injuries sustained by plaintiff arose out of his performance of the work under the contract and that Marrano was not negligent.

We, therefore, modify the order on appeal by denying plaintiffs’ motion for partial summary judgment on liability on the Labor Law § 240 (1) cause of action and granting that part of the cross motion of Marrano seeking dismissal of that cause of action and a conditional judgment against Ball based upon contractual and common-law indemnification. (Appeals from Order of Supreme Court, Erie County, Howe, J. — Labor Law.) Present — Denman, P. J., Green, Wesley, Balio and Davis, JJ.  