| Bellefleur v Newark Beth Israel Med. Ctr. |
| 2009 NY Slip Op 07569 [66 AD3d 807] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Michelle Bellefleur, Plaintiff, v Newark Beth IsraelMedical Center et al., Defendants and Third-Party Plaintiffs-Respondents. Sodexho Health CareServices, Third-Party Defendant-Appellant. |
—[*1] Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro,Jr., Adonaid C. Medina, and Gina Bernardi DiFolco of counsel), for defendants third-partyplaintiffs-respondents.
In an action to recover damages for personal injuries, and a third-party action for, inter alia,indemnification and defense, the third-party defendant Sodexho Health Care Services appeals, aslimited by its brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.),dated April 2, 2008, as granted that branch of the motion of the defendants third-party plaintiffswhich was for summary judgment obligating it to defend them in the main action, andconditionally granted that branch of the motion of the defendants third-party plaintiffs which wasfor summary judgment on their third-party causes of action for common-law and contractualindemnification.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the motion of the defendants third-party plaintiffs which were for summaryjudgment obligating the appellant to defend them in the main action, and for summary judgmenton their third-party causes of action for common-law and contractual indemnification, aredenied.
The plaintiff allegedly was injured when she slipped and fell on a wet floor in the defendantNewark Beth Israel Medical Center (hereinafter Beth Israel). The plaintiff commenced thisaction to recover damages for negligence against Beth Israel and the defendant Saint BarnabasHealth Care Systems (hereinafter SBHCS) in which she alleged, inter alia, that they created thedangerous condition. Sodexho Health Care Services (hereinafter SHCS) contracted with BethIsrael to provide housekeeping services for Beth Israel. Beth Israel and SBHCS (hereinaftertogether the third-party plaintiffs) filed a third-party complaint against SHCS for, inter alia,common-law and contractual indemnification and to defend them in the main action.[*2]
The principle of common-law, or implied,indemnification permits one who has been compelled to pay for the wrong of another to recoverfrom the wrongdoer the damages it paid to the injured party (see Curreri v Heritage Prop. Inv. Trust, Inc., 48 AD3d 505, 507[2008]). "If, in fact, an injury can be attributed solely to the negligent performance ornonperformance of an act solely within the province of the contractor, then the contractor may beheld liable for indemnification to an owner" (id. at 507). To establish their claim forcommon-law indemnification, the third-party plaintiffs "were required to prove not only thatthey were not negligent, but also that the proposed indemnitor [SHCS] was responsible fornegligence that contributed to the accident or, in the absence of any negligence, had the authorityto direct, supervise, and control the work giving rise to the injury" (Benedetto v Carrera Realty Corp., 32AD3d 874, 875 [2006]). Here, the third-party plaintiffs were not entitled to conditionalsummary judgment on their claim for common-law indemnification against SHCS because theyfailed to establish, prima facie, that they were not negligent (see generally Alvarez v ProspectHosp., 68 NY2d 320 [1986]).
Further, "[t]he right to contractual indemnification depends upon the specific language of thecontract" (George v Marshalls of MA,Inc., 61 AD3d 925, 930 [2009]; see Canela v TLH 140 Perry St., LLC, 47 AD3d 743, 744 [2008])."The promise to indemnify should not be found unless it can be clearly implied from thelanguage and purpose of the entire agreement and the surrounding circumstances" (George vMarshalls of MA, Inc., 61 AD3d at 930; see Hooper Assoc. v AGS Computers, 74NY2d 487, 491-492 [1989]). "[A] party seeking contractual indemnification must prove itselffree from negligence, because to the extent its negligence contributed to the accident, it cannotbe indemnified therefor" (Cava Constr.Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2009]). In contrast, where aquestion of fact exists regarding the owner's negligence, a conditional order of summaryjudgment for contractual indemnification must be denied as premature (see State of NewYork v Travelers Prop. Cas. Ins. Co., 280 AD2d 756, 757-758 [2001]). Here, the SupremeCourt should not have conditionally granted that branch of the third-party plaintiffs' motion forsummary judgment on their cause of action for contractual indemnification, as there are triableissues of fact as to whose negligence, if any, caused the plaintiff's accident. Under suchcircumstances, it was premature to award the third-party plaintiffs summary judgment on thatcause of action (see generally George v Marshalls of MA, Inc., 61 AD3d at 930).
Since SHCS is not an insurer, its duty to defend is no broader than its duty to indemnify(see George v Marshalls of MA, Inc., 61 AD3d at 930; Bryde v CVS Pharmacy, 61 AD3d907 [2009]; Brasch v Yonkers Constr. Co., 306 AD2d 508, 511 [2003]). Since thethird-party plaintiffs are not entitled to indemnification at this juncture, they also are not entitledto a defense. Fisher, J.P., Covello, Angiolillo and Roman, JJ., concur.