| Mid-Valley Oil Co., Inc. v Hughes Network Sys., Inc. |
| 2008 NY Slip Op 06635 [54 AD3d 394] |
| August 19, 2008 |
| Appellate Division, Second Department |
| Mid-Valley Oil Company, Inc., Appellant, and Westport InsuranceCorporation, as Subrogee of Mid-Valley Oil Company, Inc.,Intervenor-Appellant, v Hughes Network Systems, Inc., Defendant and Third-PartyPlaintiff-Respondent. North Star Video, Inc., Third-PartyDefendant-Respondent. |
—[*1] Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, Harris J. Zakarin,and Todd Belous of counsel), for intervenor plaintiff-appellant. Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston, N.Y. (William N. Cloonan ofcounsel), for defendant third-party plaintiff-respondent. Vouté, Lohrfink, Magro & Collins, LLP, White Plains, N.Y. (Ralph F. Schoene andHal Roberts of counsel), for third-party defendant-respondent.
In an action, inter alia, for common-law and contractual indemnification, (1) the intervenorplaintiff appeals from so much of an order of the Supreme Court, Orange County (Owen, J.),dated December 22, 2006, as denied its motion for summary judgment on the supplementalcomplaint, granted that branch of the cross motion of the defendant and third-party plaintiffwhich was for summary judgment dismissing the supplemental complaint insofar as assertedagainst it, and granted the motion of North Star Video, Inc., for summary judgment dismissingthe supplemental complaint insofar as asserted against it, and (2) the plaintiff appeals, as limitedby its brief, from so much of a judgment of the same court entered January 31, 2007, as, upon somuch of the order dated [*2]December 22, 2006, as denied itsmotion for summary judgment on the complaint, and granted that branch of the cross motion ofthe defendant and third-party plaintiff which was for summary judgment dismissing thecomplaint insofar as asserted against it, is in favor of the defendant and third-party plaintiff andagainst it dismissing the complaint, and the intervenor plaintiff separately appeals, as limited byits brief, from so much of the same judgment as, upon the order dated December 22, 2006, is infavor of Hughes Network Systems, Inc., and North Star Video, Inc., and against it, dismissing thesupplemental complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to Hughes Network Systems, Inc., and North StarVideo, Inc., payable by the appellants.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeals from the judgment (CPLR 5501 [a] [1]).
This action, inter alia, for common-law and contractual indemnification arises from anunderlying personal injury action in which a worker was injured while installing satelliteequipment. The injured worker was employed by the third-party defendant, North Star Video,Inc. (hereinafter North Star), while working on property belonging to the plaintiff, Mid-ValleyOil Company, Inc. (hereinafter Mid-Valley). Under a contract between the defendant andthird-party plaintiff, Hughes Network Systems, Inc. (hereinafter Hughes), and North Star, NorthStar was hired to perform the installation work. In the underlying action, the injured workerobtained a judgment against Mid-Valley. In this action, Mid-Valley and the intervenor plaintiff,Westport Insurance Corporation, as subrogee of the plaintiff Mid-Valley Oil Company, Inc.(hereinafter Westport), seek, inter alia, common-law and contractual indemnification fromHughes. Hughes, in turn, impleaded North Star, seeking indemnification.
While an owner who establishes that its liability pursuant to Labor Law § 240 (1) ispurely statutory and vicarious may obtain common-law indemnification (see Perri v Gilbert Johnson Enters.,Ltd., 14 AD3d 681, 684-685 [2005]; Storms v Dominican Coll. of Blauvelt, 308AD2d 575, 577 [2003]; see generallyBerenson v Jericho Water Dist., 33 AD3d 574 [2006]), such owner must also prove thatthe proposed indemnitor was guilty of some negligence that caused or contributed to the accidentor, in the absence of any negligence, that the proposed indemnitor had the authority to direct,supervise, and control the work giving rise to the injury (see Perri v Gilbert Johnson Enters.,Ltd., 14 AD3d at 684-685). Hughes established its entitlement to judgment as a matter of lawon that branch of its cross motion which was for summary judgment dismissing the causes ofaction for common-law indemnification asserted by Westport and Mid-Valley against it. Hughesdemonstrated, prima facie, that it neither was negligent nor had the authority to direct, supervise,or control the work giving rise to the injury (see Benedetto v Carrera Realty Corp., 32 AD3d 874, 875-876[2006]; Perri v Gilbert Johnson Enters., Ltd., 14 AD3d at 684-685). In opposition to thatbranch of the cross motion, Westport and Mid-Valley failed to raise a triable issue of fact as towhether Hughes either was negligent or had the authority to direct, supervise, or control the workgiving rise to the injury (see Benedetto v Carrera Realty Corp., 32 AD3d at 875-876;Perri v Gilbert Johnson Enters., Ltd., 14 [*3]AD3d at684-685). Accordingly, the Supreme Court properly dismissed the claims for common-lawindemnification against Hughes that were asserted by Westport and Mid-Valley.
Mid-Valley's claim for contractual indemnification against Hughes also was properlydismissed. Mid-Valley failed to demonstrate that it was a third-party beneficiary of a certaincontract (hereinafter the Mobil/Hughes contract) between Hughes and Mobil Oil Corporation.Hughes established, prima facie, that its obligations under the Mobil/Hughes contract forindemnification and to procure liability insurance did not inure to the benefit of Mid-Valley (see generally Mendel v Henry Phipps PlazaW., Inc., 6 NY3d 783, 786 [2006]; Burns Jackson Miller Summit & Spitzer vLindner, 59 NY2d 314, 336 [1983]; Walls v City of New York, 48 AD3d 792 [2008]). In opposition,Mid-Valley failed to raise a triable issue of fact (see generally Mendel v Henry Phipps PlazaW., Inc., 6 NY3d at 786; Burns Jackson Miller Summit & Spitzer v Lindner, 59NY2d at 336; Walls v City of NewYork, 48 AD3d 792 [2008]).
Westport's claim for contractual indemnification against North Star also was properlydismissed. Westport failed to demonstrate that it was a third-party beneficiary of a certaincontract between Hughes and NorthStar (hereinafter the Hughes/NS contract). North Starestablished, prima facie, that the Hughes/NS contract expressly provided that there were nothird-party beneficiaries thereunder (see generally Mendel v Henry Phipps Plaza W., Inc.,6 NY3d at 786; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d at 336; Walls v City of New York, 48 AD3d792 [2008]). In opposition to North Star's prima facie showing on this claim, Westport failedto raise a triable issue of fact (see generally Mendel v Henry Phipps Plaza W., Inc., 6NY3d at 786; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d at 336; Walls v City of New York, 48 AD3d792 [2008]).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Skelos, J.P., Santucci, Balkin and Chambers, JJ., concur.