| Hirsch v Blake Hous., LLC |
| 2009 NY Slip Op 06164 [65 AD3d 570] |
| August 11, 2009 |
| Appellate Division, Second Department |
| Patrick J. Hirsch, Plaintiff, v Blake Housing, LLC, et al.,Defendants, and Empire Developers Corp., Defendant and Third-Party Plaintiff-Appellant.Absolute Electrical Contracting, Inc., et al., Third-Party Defendants and Bass Plumbing &Heating Corp., Third-Party Defendant-Respondent. |
—[*1] O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Michael T. Reagan ofcounsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, the defendant third-party plaintiffEmpire Developers Corp. appeals from so much of an order of the Supreme Court, Kings County(Hinds-Radix, J.), dated July 24, 2008, as, in effect, denied that branch of its motion which wasfor summary judgment on its third-party cause of action for contractual indemnification insofaras asserted against the third-party defendant Bass Plumbing & Heating Corp.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, an employee of the third-party defendant Bass Plumbing & Heating Corp.(hereinafter Bass), was injured while working at a construction site. Bass was a subcontractor ofthe defendant third-party plaintiff Empire Developers Corp. (hereinafter Empire), the generalcontractor. The contract between Empire and Bass required Bass to indemnify Empire "from andagainst claims, damages, losses and expenses . . . arising out of or resulting fromperformance of [Bass]'s Work under this [contract] . . . but only to the extentcaused by the negligent acts or omissions of [Bass]." Empire moved, inter alia, for summaryjudgment on its third-party cause of action for contractual indemnification insofar as assertedagainst Bass. The Supreme Court, in effect, denied that branch of Empire's motion.
"[A] party seeking contractual indemnification must prove itself free from negligence,because to the extent its negligence contributed to the accident, it cannot be indemnifiedtherefor" (Cava Constr. Co., Inc. vGealtec Remodeling Corp., 58 AD3d 660, 662 [2009]; see General ObligationsLaw § 5-322.1). "Where, as . . . here, a plaintiff's injuries stem not from themanner in which the work was being performed, but, rather, from a dangerous condition on thepremises, a general contractor may be liable in common-law negligence and under Labor Law§ 200 if it has control over the work site and actual or constructive notice of the dangerouscondition" (Keating v Nanuet Bd. of Educ., [*2]40 AD3d706, 708-709 [2007]; see Lane vFratello Constr. Co., 52 AD3d 575, 576 [2008]; Nasuro v PI Assoc., LLC, 49 AD3d 829, 830 [2008]).
Empire failed to establish, prima facie, that it lacked control over the work site or notice ofthe allegedly dangerous condition, thus precluding a finding, as a matter of law, that it was notnegligent (see Keating v Nanuet Bd. of Educ., 40 AD3d at 708). Moreover, Empire wasrequired to establish that Bass was negligent as a matter of law in order to demonstrate itsentitlement to summary judgment (see Rodriguez v Savoy Boro Park Assoc. Ltd.Partnership, 304 AD2d 738 [2003]), an issue which cannot be determined on this record (see id.; Vyadro v City of New York, 2AD3d 519, 521 [2003]). Since the alleged negligence of Empire and Bass, if any, cannot bedetermined as a matter of law, that branch of Empire's motion which was for summary judgmenton its third-party cause of action for contractual indemnification insofar as asserted against Basswas properly, in effect, denied (see Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership,304 AD2d at 739; Vyadro v City of New York, 2 AD3d at 521; Keating vNanuet Bd. of Educ., 40 AD3d at 708).
Empire's remaining contentions are without merit. Skelos, J.P., Santucci, Balkin andLeventhal, JJ., concur.