
    Reinholt Wentland, Respondent, v Occidental Chemical Corporation, Appellant, et al., Defendant. Occidental Chemical Corporation, Third-Party Plaintiff-Appellant, v SCC Contracting, Inc., Third-Party Defendant-Respondent.
   Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in granting plaintiff’s motion for summary judgment on the issue of liability on his cause of action based upon a violation of Labor Law § 240 (1). Defendant’s submissions in opposition to plaintiff’s motion raised questions of fact regarding the manner in which plaintiff’s alleged accident occurred, and thus, we are unable to determine "whether Labor Law § 240 (1) applies to the particular activity in which plaintiff was injured” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 511; see, Staples v Town of Amherst, 146 AD2d 292). We therefore modify the order by denying plaintiff’s motion.

Supreme Court properly denied the motion of defendant Occidental Chemical Corporation (Occidental) for summary judgment on its cross claim for contractual and common-law indemnity against defendant SCC Contracting, Inc. (SCC). Occidental failed to establish that it was free from negligence and that SCO’s subcontractor was negligent (see, LaCroix v Migliore Constr. Co., 142 AD2d 980, 981; Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 125 AD2d 754, affd 71 NY2d 599). Occidental’s contention that the plank on which plaintiff was standing broke because of high pressure water blasting was based upon speculation and surmise.

Moreover, Occidental failed to establish that its contract with SCC required SCC to indemnify Occidental for claims arising in the course of or in connection with the performance of a separate contract that Occidental had with plaintiff’s employer (see, Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777). (Appeal from Order of Supreme Court, Erie County, Fudeman, J. — Summary Judgment.) Present — Den-man, P. J., Callahan, Boomer, Balio and Davis, JJ.  