| Rodriguez v Seven Seventeen HB Buffalo Corp. |
| 2008 NY Slip Op 09223 [56 AD3d 1280] |
| November 21, 2008 |
| Appellate Division, Fourth Department |
| Robert Rodriguez, Jr., Plaintiff, v Seven Seventeen HB BuffaloCorporation et al., Defendants. (And a Third-Party Action.) Seven Seventeen HB BuffaloCorporation et al., Second Third-Party Plaintiffs-Appellants, v Capital Concrete Cutting,Inc., Second Third-Party Defendant-Respondent. |
—[*1] Law Offices of Laurie G. Ogden, Buffalo (John Wallace of counsel), for second third-partydefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), enteredJanuary 23, 2008 in a personal injury action. The order, insofar as appealed from, granted thatpart of the motion of second third-party defendant for summary judgment dismissing the secondthird-party complaint insofar as it seeks contractual indemnification and denied that part of thecross motion of second third-party plaintiffs for partial summary judgment on contractualindemnification.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he sustained while performing demolition work at the Adams MarkHotel. Plaintiff, an employee of second third-party defendant, Capital Concrete Cutting, Inc.(Capital), was injured when he slipped and fell on exposed rebar. We reject the contention ofdefendants and second third-party plaintiffs (second third-party plaintiffs) that Supreme Courterred in granting that part of Capital's motion for summary judgment dismissing the secondthird-party [*2]complaint insofar as it seeks contractualindemnification. Workers' Compensation Law § 11 prohibits a third-party action against anemployer unless the plaintiff sustained a grave injury or there is "a written contract entered intoprior to the accident or occurrence by which the employer had expressly agreed to contribution orindemnification of the [third-party plaintiff]" (see Flores v Lower E. Side Serv. Ctr., Inc.,4 NY3d 363, 367 [2005], rearg denied 5 NY3d 746 [2005]). In support of its motion,Capital submitted evidence establishing that there was no written contract between secondthird-party plaintiffs and Capital on December 2, 1998, the date of plaintiff's accident. Thesubcontract that provided for indemnification was not executed by defendant and secondthird-party plaintiff HBE Corporation (HBE) until February 12, 1999, however, and it expresslyprovided that it "shall have no binding force or effect on [HBE] unless and until [it] is executedby [HBE]." Contrary to the contention of second third-party plaintiffs, they failed to raise atriable issue of fact whether the parties to the subcontract intended or agreed to make thesubcontract retroactive to the date of plaintiff's accident (see LaFleur v MLB Indus., Inc.,52 AD3d 1087, 1088 [2008]).
We reject the further contention of second third-party plaintiffs that the certificate of liabilityinsurance obtained by Capital prior to plaintiff's accident constituted "recognition" of anindemnification agreement in effect at the time of plaintiff's accident. "An agreement to procureinsurance is not an agreement to indemnify or hold harmless, and the distinction betweenthe two is well recognized" (Kinney v Lisk Co., 76 NY2d 215, 218 [1990]). We haveconsidered second third-party plaintiffs' remaining contention and conclude that it is withoutmerit. Present—Scudder, P.J., Martoche, Smith, Peradotto and Pine, JJ.