| Hurley v Best Buy Stores, L.P. |
| 2008 NY Slip Op 09477 [57 AD3d 239] |
| December 4, 2008 |
| Appellate Division, First Department |
| Michael Hurley, Plaintiff, v Best Buy Stores, L.P., et al.,Defendants. Schimenti Construction Company, LLC, Third-Party Plaintiff-Respondent, v SageElectrical Contracting, Inc., Third-Party Defendant-Appellant. Best Buy Stores, L.P., et al.,Second Third-Party Plaintiffs-Respondents, v Sage Electrical Contracting, Inc., SecondThird-Party Defendant-Appellant. |
—[*1] McManus, Collura & Richter, P.C., New York (Nicholas P. Chrysanthem of counsel), forrespondents.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered January 4, 2008,which, to the extent appealed from as limited by the briefs, granted so much ofdefendants/third-party plaintiff and second third-party plaintiffs' motion for summary judgmenton their third-party claims for contractual indemnification against Sage Electrical Contracting,unanimously reversed, on the law, without costs, the motion denied, and the matter remanded forfurther proceedings.
The contractual indemnification provision, which applies to claims "arising out of or inconsequence" of performance by Sage of its work on the project, is broad enough to apply here,where plaintiff was injured while performing electrical work for Sage on the project (see Urbina v 26 Ct. St. Assoc., LLC, 46AD3d 268 [2007]). However, defendants never moved for summary judgment dismissingthe common-law negligence and Labor Law § 200 causes of action against [*2]them, or otherwise established their freedom from negligence as amatter of law (see Brennan v 42nd St.Dev. Project, Inc., 10 AD3d 302 [2004]). Since there is a possibility plaintiff couldprevail on a theory of negligent coordination of demolition and electrical projects that resulted ina dangerous condition allowing a lighting fixture to swing down and hit plaintiff, the grant ofsummary judgment on the indemnification claims was premature (see McKenna v LehrerMcGovern Bovis, 302 AD2d 329, 331 [2003]). Concur—Mazzarelli, J.P., Friedman,Gonzalez, Buckley and Sweeny, JJ. [See 2008 NY Slip Op 30003(U).]