| Cava Constr. Co., Inc. v Gealtec Remodeling Corp. |
| 2009 NY Slip Op 00324 [58 AD3d 660] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Cava Construction Co., Inc., Appellant, v GealtecRemodeling Corp., Respondent. |
—[*1] Marshall, Conway, Wright & Bradley, P.C., New York, N.Y. (Amy S. Weissman andMichael Gollub of counsel), for respondent.
In an action, inter alia, for contractual indemnification, the plaintiff appeals, as limited by itsbrief, from (1) so much of an order of the Supreme Court, Queens County (O'Donoghue, J.),entered May 24, 2007, as, upon its failure to appear at a calendar call, denied its motion forsummary judgment on the cause of action for contractual indemnification and granted thatbranch of the defendant's cross motion which was for summary judgment dismissing that causeof action, and (2) so much of an order of the same court entered November 8, 2007, as denied itsmotion (a) to vacate so much of the order entered May 24, 2007, as, upon its failure to appear,denied its motion for summary judgment on the cause of action for contractual indemnification,(b) for summary judgment on the cause of action for contractual indemnification, and (c) forleave to reargue that branch of the defendant's cross motion which was for summary judgmentdismissing the cause of action for contractual indemnification.
Ordered that the order entered May 24, 2007 is modified, on the law, by deleting theprovision thereof granting that branch of the cross motion which was for summary judgmentdismissing the cause of action for contractual indemnification, and substituting therefor aprovision denying that branch of the cross motion; as so modified, the order entered May 24,2007 is affirmed insofar as appealed from; and it is further,[*2]
Ordered that the appeal from so much of the orderentered November 8, 2007 as denied that branch of the plaintiff's motion which was for leave toreargue is dismissed, as no appeal lies from an order denying leave to reargue; and it is further,
Ordered that the order entered November 8, 2007 is modified, on the law, by deleting theprovision thereof denying that branch of the plaintiff's motion which was to vacate so much ofthe order entered May 24, 2007, as, upon the plaintiff's failure to appear, denied its motion forsummary judgment on the cause of action for contractual indemnification, and substitutingtherefor a provision granting that branch of the motion and thereupon denying the plaintiff'smotion for summary judgment on the merits; as so modified, the order entered November 8,2007 is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The Supreme Court erred in determining that the plaintiff cannot validly assert a cause ofaction for contractual indemnification against the defendant corporation on the ground that thedefendant corporation dissolved in 2003. A corporation continues to exist after dissolution forthe winding up of its affairs, and a dissolved corporation may sue or be sued on its obligations,including contractual obligations and contingent claims, until its affairs are fully adjusted(see Business Corporation Law § 1006; Tedesco v A.P. Green Indus., Inc., 8 NY3d 243 [2007];Gutman v Club Mediterranee Intl., 218 AD2d 640 [1995]; Matter of Rodgers vLogan, 121 AD2d 250, 253 [1986]).
The Supreme Court erred in denying that branch of the plaintiff's motion which was tovacate so much of the order entered May 24, 2007, as, upon its failure to appear at a calendarcall, denied its motion for summary judgment on the cause of action for contractualindemnification. The plaintiff showed a reasonable excuse for the default in appearing and theexistence of a meritorious claim (see CPLR 5015 [a] [1]; Hageman v Home Depot U.S.A., Inc.,25 AD3d 760 [2006]; Liotti vPeace, 15 AD3d 452 [2005]; Waste Mgt. of N.Y., Inc. v Bedford-Stuyvesant Restoration Corp., 13AD3d 362 [2004]; cf. McClaren vBell Atl., 30 AD3d 569 [2006]).
Although the plaintiff established its entitlement to judgment as a matter of law on the causeof action for contractual indemnification, the defendant raised questions of fact precludingsummary judgment. When liability attaches solely pursuant to Labor Law § 240 (1),indemnification may be sought from the party actually responsible for the supervision, direction,and control of the work giving rise to the injury (see Comes v New York State Elec. & GasCorp., 82 NY2d 876 [1993]; Loiacono v Lehrer McGovern Bovis, 270 AD2d 464[2000]; Canka v Coalition for the Homeless, 240 AD2d 355 [1997]). However, a partyseeking contractual indemnification must prove itself free from negligence, because to the extentits negligence contributed to the accident, it cannot be indemnified therefor (see GeneralObligations Law § 5-322.1; Reynolds v County of Westchester, 270 AD2d 473[2000]). Here, since there are questions of fact as to whether the plaintiff was free fromnegligence with regard to the underlying accident, summary judgment on the cause of action forcontractual indemnification is not warranted (see Castrogiovanni v Corporate Prop.Invs., 276 AD2d 660 [2000]). Prudenti, P.J., Santucci, McCarthy and Chambers, JJ., concur.