| Shea v Putnam Golf, Inc. |
| 2010 NY Slip Op 09499 [79 AD3d 1013] |
| December 21, 2010 |
| Appellate Division, Second Department |
| Susan Shea, Respondent, v Putnam Golf, Inc., Doing Businessas Putnam County National Golf Club, Appellant-Respondent, and County of Putnam,Respondent-Appellant. |
—[*1] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Colonie, N.Y. (Avid SpencerDecaire of counsel), for respondent-appellant.
In an action to recover damages for personal injuries, the defendant Putnam Golf, Inc., doingbusiness as Putnam County National Golf Club, appeals from (1) so much of an order of the SupremeCourt, Putnam County (O'Rourke, J.), dated September 15, 2009, as granted that branch of themotion of the defendant County of Putnam which was for summary judgment dismissing the complaintinsofar as asserted against the County of Putnam, and (2) so much of an order of the same court datedNovember 24, 2009, as granted the motion of the defendant County of Putnam for leave to rearguethat branch of its motion which was for summary judgment dismissing the cross claims for contributionand indemnification against it, which was, in effect, denied in the order dated September 15, 2009, and,upon reargument, granted that branch of the motion of the County of Putnam, and denied its crossmotion for leave to reargue; and the defendant County of Putnam cross-appeals from the order datedNovember 24, 2009.
Ordered that the appeal from so much of the order dated September 15, 2009, as granted thatbranch of the motion of the defendant County of Putnam which was for summary judgment dismissingthe complaint insofar as asserted against it is dismissed, as the defendant Putnam Golf, Inc., doingbusiness as Putnam County National Golf Club, is not aggrieved by that portion of the order (seeCPLR 5511; Mixon v TBV, Inc., 76AD3d 144 [2010]); and it is further,
Ordered that the appeal from so much of the order dated November 24, 2009, as denied the crossmotion of the defendant Putnam Golf, Inc., doing business as Putnam County National Golf Club, forleave to reargue is dismissed, as no appeal lies from an order denying leave to reargue; and it is further,
Ordered that the cross-appeal from the order dated November 24, 2009, is dismissed asabandoned (see Matter of Harris v Town Bd.of Town of Riverhead, 73 AD3d 922, 925 [2010]); and it is further,[*2]
Ordered that the order dated November 24, 2009, ismodified, on the law, by deleting the provision thereof which, upon reargument, granted that branch ofthe motion of the County of Putnam which was for summary judgment dismissing the cross claims forcontribution and indemnification against it, and substituting therefor a provision, upon reargument,adhering to the prior determination, in effect, denying that branch of the motion; as so modified, theorder dated November 24, 2009, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendant Putnam Golf, Inc., doing business asPutnam County National Golf Club, payable by the defendant County of Putnam.
The plaintiff alleged that in September 2006, while on the premises of a golf course located in theCounty of Putnam, she was injured when the rail of a fence upon which she was leaning gave way. Theplaintiff sued the County, which owned the premises, and Putnam Golf, Inc., doing business as PutnamCounty National Golf Club (hereinafter Putnam Golf), which operated the premises, to recoverdamages for personal injuries. The two defendants asserted various cross claims against one another.
The County moved for summary judgment dismissing the complaint and all cross claims insofar asasserted against it. By order dated September 15, 2009, the Supreme Court, inter alia, granted thatbranch of the County's motion which was for summary judgment dismissing the complaint insofar asasserted against it, and, in effect, denied that branch of the County's motion which was for summaryjudgment dismissing all cross claims against it. The County then moved for leave to reargue, contending,among other things, that Putnam Golf's cross claims for contribution and indemnification against it alsoshould have been dismissed. By order dated November 24, 2009, the Supreme Court, inter alia,granted the County's motion for leave to reargue, and, upon reargument, granted that branch of itsmotion which was for summary judgment dismissing Putnam Golf's cross claims against it forcontribution and indemnification. The Supreme Court also denied a cross motion made by Putnam Golf for leave to reargue. Putnam Golf appeals from bothorders.
Contrary to Putnam Golf's contention, the Supreme Court providently exercised its discretion ingranting the County's motion for leave to reargue (see Scarito v St. Joseph Hill Academy, 62 AD3d 773, 775 [2009]; cf. Rodriguez v Ford Motor Co., 62 AD3d573, 574 [2009]; Breytman v OlinvilleRealty, LLC, 46 AD3d 484, 485 [2007]). However, upon reargument, the Court should haveadhered to its original determination which, in effect, denied that branch of the County's motion whichwas for summary judgment dismissing the cross claims for contribution and indemnification assertedagainst it by Putnam Golf. The claim for contribution from the County lies in favor of Putnam Golf,regardless of whether the plaintiff's right of recovery against the County has been extinguished (seeRaquet v Braun, 90 NY2d 177, 182-183 [1997]; Torres v W.J. Woodward Constr., Inc., 32 AD3d 847, 848 [2006]).Furthermore, because there are triable issues of fact as to whether the County was negligent inmaintaining the fence, the County was not entitled to summary judgment dismissing the cross claim forcontribution. For similar reasons, the County was not entitled to summary judgment dismissing the crossclaim for common-law indemnification (seeBellefleur v Newark Beth Israel Med. Ctr., 66 AD3d 807, 808 [2009]; Curreri v Heritage Prop. Inv. Trust, Inc., 48AD3d 505, 507 [2008]).
"The right to contractual indemnification depends upon the specific language of the contract" (George v Marshalls of MA, Inc., 61 AD3d925, 930 [2009]; see Canela v TLH140 Perry St., LLC, 47 AD3d 743, 744 [2008]). Here, in light of certain language concerningstructural repairs in the management agreement between the County and Putnam Golf, as well as thesubsequent replacement of the fence by the County after the plaintiff's accident, the County failed toestablish, prima facie, that it was entitled to judgment as a matter of law dismissing Putnam Golf's claimfor contractual indemnification. Rivera, J.P., Dickerson, Lott and Sgroi, JJ., concur.