| Roddy v Nederlander Producing Co. of Am., Inc. |
| 2007 NY Slip Op 08016 [44 AD3d 556] |
| October 25, 2007 |
| Appellate Division, First Department |
| Pat Roddy, Plaintiff, v Nederlander Producing Company ofAmerica, Inc., et al., Appellants, and Abhann Productions, Inc., et al.,Respondents. |
—[*1] Mischel & Horn, P.C., New York City (Scott T. Horn of counsel), for respondents.
Order, Supreme Court, New York County (Louis B. York, J.), entered March 8, 2007, whichdenied defendant Gershwin Theatre's motion for summary judgment on its contractualindemnification claim against former defendant Abhann Productions, unanimously reversed, onthe law, with costs, and conditional summary judgment granted on that claim.
Summary relief is appropriate on a claim for contractual indemnification where, as here, thelicense agreement is unambiguous and clearly sets forth the parties' intention that a licenseeindemnify the licensor for the injuries sustained (see Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427 [2005];Karp v Federated Dept. Stores, 301 AD2d 574 [2003]). Gershwin established such primafacie entitlement by demonstrating, through deposition testimony and other evidence, that thefogger machines and floor that caused plaintiff's injury were under the exclusive control ofAbhann, and that Abhann had directed every aspect of the work through which plaintiff wasinjured (see Matter of New York CityAsbestos Litig., 41 AD3d 299, 302-303 [2007]). Abhann failed to meet its burden ofestablishing the existence of an issue of fact in this regard (see Nicholas v EPO-Harvey Apts.,Ltd. Partnership, 31 AD3d 1174 [2006]).
In light of the unrebutted prima facie demonstration that Gershwin was not negligent in theoccurrence of the accident, General Obligations Law § 5-322.1 is inapplicable (see Castilla v K.A.B. Realty, Inc., 37AD3d 510 [2007]; Davis v AllState Assoc., 23 AD3d 607 [2005]). We further note that that section does not prohibitindemnity where, as here, a lessor and lessee freely enter into an indemnification agreementwhereby they use insurance to allocate between themselves the risk of liability to third parties(see Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 161 [1977]; Duane Reade v 405 Lexington, L.L.C.,22 AD3d 108 [2005]).
Conditional summary judgment is appropriate here notwithstanding the fact that a judgmenthas yet to be rendered or paid by Nederlander or Gershwin in the main action, since it serves theinterest of justice and judicial economy in affording the indemnitee "the earliest possibledetermination as to the[*2] extent to which he may expect to bereimbursed" (McCabe v Queensboro Farm Prods., 22 NY2d 204, 208 [1968]; see also Lowe v Dollar Tree Stores,Inc., 40 AD3d 264 [2007]).
The court properly denied Gershwin's application for counsel fees on its motion forcontractual indemnification, since neither the licensing agreement in question nor the general ruleprovides for it (see Chapel v Mitchell, 84 NY2d 345, 349 [1994]; State of New Yorkv Rice Mohawk U.S. Constr. Co., 262 AD2d 114 [1999]; Perchinsky v State of NewYork, 232 AD2d 34, 39-40 [1997], lv dismissed 91 NY2d 830 [1997], lvdenied 93 NY2d 812 [1999]).
We have considered the parties' remaining contentions and find them unavailing.Concur—Tom, J.P., Saxe, Nardelli, Sweeny and Catterson, JJ.