| DiFilippo v Parkchester N. Condominium |
| 2009 NY Slip Op 06457 [65 AD3d 899] |
| September 15, 2009 |
| Appellate Division, First Department |
| Michael DiFilippo et al., Plaintiffs, v Parkchester NorthCondominium et al., Defendants. Parkchester North Condominium et al., Third-PartyPlaintiffs-Respondents-Appellants, v Blueprint Plumbing Corp., Third-PartyDefendant-Appellant-Respondent. |
—[*1] Fiedelman & McGaw, Jericho (Dawn C. DeSimone of counsel), forrespondents-appellants.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered October 15,2008, which, to the extent appealed from, granted third-party defendant Blueprint's motion forsummary judgment dismissing the third-party claims for common-law negligence, contributionand indemnification, but denied dismissal of so much of the third-party complaint for contractualindemnification, and denied so much of third-party plaintiffs' (Parkchester) cross motion forsummary judgment on their claim for contractual indemnification, unanimously affirmed,without costs.
The main action is against a property lessee and its manager for employment-related injuriesand alleges claims based on common-law negligence and violations of Labor Law§§ 200, 240 (1) and § 241 (6). The Parkchester defendants brought athird-party action against the injured worker's employer, for, inter alia, contractualindemnification. The motion court dismissed all of plaintiffs' claims except those based uponLabor Law § 241 (6).
Based on issues of fact as to who created the dangerous condition (water and debris on thefloor) causing plaintiff's slip and fall, the motion for summary judgment and cross motion forsummary judgment as to contractual indemnification were properly denied.
The indemnification agreement would be enforceable if the indemnitee is found notnegligent, but nevertheless vicariously liable to plaintiff for Blueprint's negligence under the[*2]nondelegable duty Labor Law § 241 (6) imposes(see General Obligations Law § 5-322.1 [1]; Linarello v City Univ. of N.Y., 6 AD3d 192, 193-194 [2004]).Parkchester is not however entitled to summary judgment on its indemnification claim because,on this record, there are the above-noted issues of fact as to whether Parkchester is at fault forplaintiff's Labor Law § 241 (6) claim.
In its lack-of-preservation argument, third-party defendant "raises a legal argument thatappears on the face of the record and could not have been avoided if brought to [third-partyplaintiffs'] attention at the proper juncture, the record on appeal is sufficient for its resolution,and the issue is determinative" (Baker vBronx Lebanon Hosp. Ctr., 53 AD3d 21, 27 [2008]). Third-party defendant argued thatthird-party plaintiffs were negligent and thus precluded from enforcing the indemnificationcontract. Because this issue was considered by the motion court, it is properly before us forreview.
We have considered the parties' remaining contentions for affirmative relief and find themunavailing. Concur—Gonzalez, P.J., Friedman, Moskowitz, Renwick and Freedman, JJ.