| Kielty v AJS Constr. of L.I., Inc. |
| 2011 NY Slip Op 03551 [83 AD3d 1004] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Keri Kielty, Plaintiff, v AJS Construction of L.I., Inc., etal., Defendants/Third-Party Plaintiffs-Appellants, NY Construction & Paving, Inc.,Defendant/Third-Party Defendant-Respondent-Appellant, and MRP Family Holdings, LLC,Respondent, et al., Defendant. |
—[*1] Russo, Keane & Toner, LLP, New York, N.Y. (Thomas F. Keane of counsel),for defendant/third-party defendant-respondent-appellant. Cohen, Kuhn & Associates, New York, N.Y. (James V. Sawicki and Thomas Herbertson ofcounsel), for defendant-respondent.
In an action to recover damages for personal injuries, the defendants/third-party plaintiffs,AJS Construction of L.I., Inc., and AJS Construction & Project Management, Inc., appeal, aslimited by their brief, from so much of an order of the Supreme Court, Richmond County(Maltese, J.), dated March 19, 2010, as granted that branch of the motion of the defendant MRPFamily Holdings, LLC, which was for summary judgment on its cross claims against them forcommon-law and contractual indemnification, and denied their motion for summary judgment ontheir third-party cause of action for common-law indemnification against thedefendant/third-party defendant, NY Construction & Paving, Inc., and the defendant/third-partydefendant, NY Construction & Paving, Inc., separately appeals, as limited by its notice of appealand brief, from so much of the same order as granted that branch of the motion of the defendantMRP Family Holdings, LLC, which was for summary judgment on that defendant's cross claimagainst it for common-law indemnification.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat branch of the motion of the defendant MRP Family Holdings, LLC, which was for summaryjudgment on its cross claim against the defendants/third-party plaintiffs, AJS Construction ofL.I., Inc., and AJS Construction & Project Management, Inc., for common-law and contractualindemnification, and substituting therefor a provision denying that branch of the motion, and (2)by deleting the provision thereof granting that branch of the motion of the defendant MRPFamily Holdings, LLC, which was for summary judgment on its cross claim against thedefendant/third-party defendant, NY Construction & Paving, Inc., for common-lawindemnification, and substituting therefor a provision denying that branch of the motion; as somodified, the order is affirmed insofar as appealed from, with one bill of costs to thedefendant/[*2]third-party defendant, NY Construction & Paving,Inc., payable by the defendants/third-party plaintiffs, AJS Construction of L.I., Inc., and AJSConstruction & Project Management, Inc., and one bill of costs to the defendants/third-partyplaintiffs, AJS Construction of L.I., Inc., and AJS Construction & Project Management, Inc.,payable by the defendant MRP Family Holdings, LLC.
The Supreme Court should have denied those branches of the motion of the defendant MRPFamily Holdings, LLC (hereinafter MRP), which were for summary judgment on its cross claimsagainst the defendant/third-party defendant, NY Construction & Paving, Inc. (hereinafter togetherNY Construction), for common-law indemnification, and against the defendants/third-partyplaintiffs AJS Construction of L.I., Inc., and AJS Construction & Project Management, Inc.(hereinafter AJS), for common-law and contractual indemnification. To be entitled tocommon-law indemnification, MRP was required to show that it was not negligent and that theparties from which it sought indemnification were negligent in connection with the plaintiff'saccident (see George v Marshalls ofMA, Inc., 61 AD3d 925, 929-930 [2009]) or, in the absence of any negligence by thoseparties, that those parties had the authority to direct, supervise, and control the work giving riseto the injury (see Benedetto v CarreraRealty Corp., 32 AD3d 874, 875 [2006]). MRP had to show that it neither created thedangerous condition nor had actual or constructive notice of the dangerous condition (see Bolloli v Waldbaum, Inc., 71 AD3d618, 619 [2010]; Battaglia v Toys "R" Us, 271 AD2d 627, 629 [2000]; see alsoGordon v American Museum of Natural History, 67 NY2d 836, 837-838 [1986]). Moreover,an award of summary judgment on a cause of action for common-law indemnification isappropriate only where there are no triable issues of fact concerning the degree of faultattributable to the parties (see Aragundiv Tishman Realty & Constr. Co., Inc., 68 AD3d 1027, 1030 [2009]; Coque v Wildflower Estates Devs.,Inc., 31 AD3d 484, 489 [2006]).
MRP, as the owner of the parking lot in which the plaintiff fell, had the initial burden ofshowing that it neither created nor had actual or constructive notice of the allegedly defectivecondition that caused the accident (seeVan Dina v St. Francis Hosp., Roslyn, N.Y., 45 AD3d 673 [2007]; Miguel v SJS Assoc., LLC, 40 AD3d942 [2007]; Riley v ISS Intl. Serv.Sys., 5 AD3d 754, 756 [2004]). Here, MRP did not establish, prima facie, that it lackedactual notice of the allegedly defective condition. In addition, MRP failed to meet its initialburden of demonstrating that it did not have constructive notice of the allegedly dangerouscondition as a matter of law (see Gordon v American Museum of Natural History, 67NY2d at 837; Aragundi v Tishman Realty & Constr. Co., Inc., 68 AD3d at 1030; Rodriguez v Hudson View Assoc.,LLC, 63 AD3d 1135, 1136 [2009]). Moreover, MRP failed to eliminate all triable issuesof fact regarding its own negligence (seeBryde v CVS Pharmacy, 61 AD3d 907, 909 [2009]; Coque v Wildflower EstatesDevs., Inc., 31 AD3d at 489; seealso Knapp v Golub Corp., 72 AD3d 1260 [2010]).
As to MRP's cross claim against AJS for contractual indemnification, the right to contractualindemnification depends upon the specific language of the contract (see Holub v Pathmark Stores, Inc., 66AD3d 741, 742-743 [2009]; George v Marshalls of MA, Inc., 61 AD3d at 930).Here, MRP's contract with AJS provided that, "[t]o the fullest extent permitted by law," AJS wasrequired to indemnify MRP with respect to all claims arising from work performed by AJS or bya subcontractor of AJS, but only to the extent the injury or damage was caused by AJS or itssubcontractor. MRP failed to demonstrate its prima facie entitlement to judgment as a matter oflaw on its contractual indemnification cross claim against AJS because there are triable issues offact as to the extent, if any, of MRP's negligence in connection with the plaintiff's accident (see Callan v Structure Tone, Inc., 52AD3d 334, 335 [2008]; seegenerally Brooks v Judlau Contr., Inc., 11 NY3d 204 [2008]).
The Supreme Court properly denied AJS's motion for summary judgment on its third-partycause of action against NY Construction for common-law indemnification. Although AJSestablished, prima facie, that it lacked actual notice of the allegedly defective condition, AJSfailed to meet its burden in showing that it lacked constructive notice of the allegedly defectivecondition (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980];Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; see Gordonv American Museum of Natural History, 67 NY2d at 837). Moreover, AJS failed toeliminate all triable issues of fact regarding its negligence, if any, in causing the plaintiff's injury(see Aragundi v Tishman Realty & Constr. Co., Inc., 68 AD3d at 1030; Bryde v CVSPharmacy, 61 AD3d at 909; Coque v Wildflower Estates Devs., Inc., 31 AD3d at489; see also Knapp v Golub Corp.,72 AD3d 1260 [2010]). Skelos, J.P., Leventhal, Sgroi and Miller, JJ., concur. [PriorCase History: 2010 NY Slip Op 30604(U).]