| Crane v JAB Realty, LLC |
| 2008 NY Slip Op 01293 [48 AD3d 504] |
| February 13, 2008 |
| Appellate Division, Second Department |
| John Crane et al., Plaintiffs, v JAB Realty, LLC, et al.,Defendants and Third-Party Plainitffs-Respondents. Long Island Power Authority et al.,Third-Party Defendants-Appellants. |
—[*1] Baxter, Smith, Tassan & Shapiro, P.C., Hicksville, N.Y. (Sim R. Shapiro of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the third-party defendant LongIsland Power Authority and the second third-party defendants Keyspan Corporate Services, LLC,and Keyspan Corporation, doing business as Keyspan Energy, appeal, as limited by their brief,from so much of an order of the Supreme Court, Nassau County (Martin, J.), dated March 30,2007, as denied that branch of their cross motion which was for summary judgment dismissingthe causes of action in the third-party and second third-party complaints for common-lawindemnification.
Ordered that the order is affirmed insofar as appealed from, with costs.
The cross motion of the third-party defendant Long Island Power Authority (hereinafterLIPA), and the second third-party defendants Keyspan Corporate Services, LLC, and KeyspanCorporation, doing business as Keyspan Energy (hereinafter collectively Keyspan), did notviolate the rule against successive motions for summary judgment because the cross motion wasbased on grounds and factual assertions which could not have been raised on the first motion(see Manning v Turtel, 135 AD2d 511, 512 [1987]; cf. Selletti v Liotti, 45 AD3d 669 [2007]).[*2]
However, contrary to the contention of LIPA andKeyspan, in opposition to their demonstration of prima facie entitlement to judgment as a matterof law, the defendants third-party plaintiffs/second third-party plaintiffs raised triable issues offact which precluded dismissal of the causes of action for common-law indemnification assertedin the third-party and second third-party complaints. The contract between Keyspan and theplaintiff's employer gave LIPA and Keyspan the authority to direct the plaintiff's work.Accordingly, the Supreme Court properly denied that branch of the cross motion of LIPA andKeyspan which was to dismiss those causes of action (see Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 685[2005]; Hernandez v Two E. End Ave. Apt. Corp., 303 AD2d 556, 557 [2003]; seealso Taeschner v M & M Restorations, 295 AD2d 598 [2002]). Spolzino, J.P., Miller, Dillonand McCarthy, JJ., concur.