| Smith v Town of Colonie |
| 2009 NY Slip Op 01560 [60 AD3d 1121] |
| March 5, 2009 |
| Appellate Division, Third Department |
| Randy J. Smith, Appellant, v Town of Colonie et al., Defendantsand Third-Party Plaintiffs, et al., Defendants. Anjo Construction, Third-PartyDefendant-Respondent. |
—[*1] Goldberg Segalla, L.L.P., Albany (William J. Greagan of counsel), for third-partydefendant-respondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Egan Jr., J.), entered March 6,2008 in Albany County, which granted third-party defendant's motion for partial summaryjudgment dismissing the contractual indemnification claim of defendants Town of Colonie,Town of Colonie Pure Waters Department and Town of Colonie Building Department.
Plaintiff, an employee of third-party defendant, Anjo Construction, sustained serious injurieswhile working on the installation of sewer and water lines on property allegedly owned bydefendant Christopher Einstein in the Town of Colonie, Albany County. Anjo had contractedwith Einstein to install water and sewer to the new home constructed on the property. Anjo also[*2]had a general contractual relationship (running slightly lessthan one year) with defendant Town of Colonie to provide water and sewer work as required bythe Town, and that contract included an indemnification clause.
Plaintiff commenced this action alleging negligence and various Labor Law violationsagainst, among others, Einstein and three Town defendants (i.e., Town of Colonie, Town ofColonie Pure Waters Department and Town of Colonie Building Department [hereinaftercollectively referred to as the Town]). The Town brought a third-party action against Anjoalleging, among other things, contractual indemnification. Anjo moved for partial summaryjudgment seeking to dismiss the contractual indemnification cause of action, asserting that thework being performed at the time of plaintiff's injury was pursuant to the Anjo/Einstein contractand did not fall within Anjo's contract with the Town. Supreme Court granted Anjo's motion forpartial summary judgment and dismissed the Town's cause of action for contractualindemnification. Plaintiff appeals.
The appeal must be dismissed. Plaintiff is not an "aggrieved party" (CPLR 5511) so as tohave standing on appeal to dispute the resolution of the narrow issue—asserted in thethird-party action and not affecting the validity of plaintiff's complaint—regardingcontractual indemnification between the Town and Anjo (see D'Ambrosio v City of NewYork, 55 NY2d 454, 459-460 [1982]; Murray v City of New York, 43 AD3d 429, 430 [2007]; seealso Duffy v Horton Mem. Hosp., 66 NY2d 473, 476, n 3 [1985]; Monterroza v State Univ. Constr.Fund, 56 AD3d 629, 629 [2008]; Boyle v City of New York, 237 AD2d 230,230-231 [1997]).
Peters, J.P., Kavanagh and Stein, JJ., concur. Ordered that the appeal is dismissed, withoutcosts.