Supreme Court, Appellate Division, Second Department, New York.
Richard GOMES, et al., Plaintiffs,v.REVERE SUGAR CORP., Defendant Third-Party Plaintiff-Respondent;McRoberts Protective Agency, Inc., Third-Party Defendant-Appellant.
May 23, 1988.
Security guard filed suit against employer's client for personal injuries. Client filed third-party action against employer. The Supreme Court, Kings County, Cohen, J., denied the employer's motion for partial summary judgment. Employer appealed. The Supreme Court, Appellate Division, held that the employer could not be liable for failing to provide a safe place to work where the employer had no control over the client's premises on which the injury occurred.
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Affirmation of attorney, who had no personal knowledge of facts, had no probative value and was insufficient to defeat motion for summary judgment.
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Security guard's employer could not be liable for failure to provide safe place to work where employer had no control over client's premises on which guard slipped and fell. McKinney's Labor Law § 200.
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Security guard's employer was not liable to client for indemnification, based on guard's injuries on client's premises, absent written or oral indemnification agreement. **646 Kirschenbaum & Kirschenbaum, Garden City (Kenneth Kirschenbaum, of counsel), for third-party defendant-appellant.
Langan & Levy, New York City (Constantine Vlavianos, of counsel), for defendant third-party plaintiff-respondent.
Before WEINSTEIN, J.P., and RUBIN, SPATT and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the third- party defendant appeals from an order of the Supreme Court, Kings County (Cohen, J.), dated July 30, 1987, which denied its motion for partial summary judgment dismissing the first and third causes of action asserted in the third- party complaint.
ORDERED that the order is reversed, on the law, with costs, and the motion is granted and the first and third causes of action asserted in the third-party complaint are dismissed.
The third-party defendant McRoberts Protective Agency, Inc. (hereinafter McRoberts) employed the plaintiff Richard **647 Gomes as a security guard. The defendant Revere Sugar Corp. (hereinafter Revere) hired McRoberts to provide security at its plant, and Gomes was assigned to this task. There was no written agreement between Revere and McRoberts.
On January 17, 1985, at approximately 3:15 A.M. while walking on Revere's premises, Richard Gomes fell and was injured. Mr. Gomes brought an action against Revere alleging that his fall was caused by an accumulation of ice and/or syrup leaking from machinery. Thereafter, Revere commenced a third- party action against McRoberts alleging three causes of action: (1) failure to provide a safe place to work as required by Labor Law § 200, (2) for contribution, and (3) for indemnification.
McRoberts moved for partial summary judgment dismissing the first and third causes of action. It submitted an affidavit of its president denying that the parties had entered into an indemnification agreement. McRoberts further argued that it could not be held liable pursuant to Labor Law § 200 because it did not have control of Revere's premises and was not responsible for cleaning.
 In opposition to this motion, Revere submitted an affirmation of an attorney having no personal knowledge of the facts. Such an affirmation has no probative value and is insufficient to defeat a motion for summary judgment (see, Fauci v. Milano, 15 A.D.2d 939, 940, 225 N.Y.S.2d 888, affd. 12 N.Y.2d 926, 238 N.Y.S.2d 313, 188 N.E.2d 525; Kartiganer Assocs. v. Town of New Windsor, 132 A.D.2d 527, 517 N.Y.S.2d 266, lv. denied *58370 N.Y.2d 612, 523 N.Y.S.2d 496, 518 N.E.2d 7). In any event, the attorney's affirmation did not contradict the essential factual allegation contained in McRoberts' motion.
 The Supreme Court improperly denied McRoberts' motion for partial summary judgment. As to the first cause of action, McRoberts cannot be held liable under Labor Law § 200 because it lacked control over Revere's premises (see, Russin v. Picciano & Son, 54 N.Y.2d 311, 317-318, 445 N.Y.S.2d 127, 429 N.E.2d 805; Forbes v. Alvord & Swift, 44 A.D.2d 538, 353 N.Y.S.2d 749). Although Gomes was an employee of McRoberts within the language of the statute, it is well established that: "[i]mplicit in the statutory imposition of the duty to provide a safe place to work is the prerequisite that the party charged with such responsibility have the concomitant authority and degree of control over the activity which produces the injury to enable it to take the action necessary to correct or avoid an unsafe condition" (Reynolds v. Brady & Co., 38 A.D.2d 746, 329 N.Y.S.2d 624; accord Gluck v. Pinkerton N.Y. Racing Security Serv., 96 A.D.2d 548, 465 N.Y.S.2d 58).
Revere did not allege that McRoberts had control over the premises or any duty to inspect or clean the floors or machinery. Accordingly, there is no triable issue of fact, and this cause of action is dismissed.
 The Supreme Court also erred in denying McRoberts' motion as to the third cause of action seeking indemnification. Revere admitted that there was no written indemnification agreement. Furthermore, Revere did not contradict McRoberts's assertion that there was also no oral indemnification agreement.
528 N.Y.S.2d 646, 140 A.D.2d 582
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