McAllister v Construction Consultants L.I., Inc.

2011 NY Slip Op 03556 [83 AD3d 1013]

April 26, 2011

Appellate Division, Second Department

As corrected through Wednesday, June 8, 2011

Michael F. McAllister et al., Plaintiffs, v ConstructionConsultants L.I., Inc., Defendant/Third-Party Plaintiff-Respondent, et al., Defendant. C. GlasserConstruction Corp., Third-Party Defendant-Appellant.

—[*1]Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y. (Vanessa M. Corchiaof counsel), for third-party defendant-appellant.

Brody, O'Connor & O'Connor, Northport, N.Y. (Scott A. Brody, Patricia A. O'Connor, andJoseph P. Minasi of counsel), for defendant/third-party plaintiff-respondent.

In an action, inter alia, to recover damages for personal injuries, etc., and a related third-partyaction, the third-party defendant appeals from an order of the Supreme Court, Suffolk County(Costello, J.), dated September 24, 2009, which granted the motion of the defendant/third-partyplaintiff for conditional summary judgment on its third-party cause of action for contractualindemnification.

Ordered that the order is reversed, on the law, with costs, and the motion of thedefendant/third-party plaintiff for conditional summary judgment on its third-party cause ofaction for contractual indemnification is denied as premature.

"[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], citing General Obligations Law§ 5-322.1; see Reynolds v County of Westchester, 270 AD2d 473 [2000]). Here,the Supreme Court erred in granting the motion of the defendant/third-party plaintiff which wasfor conditional summary judgment on its third-party cause of action for contractualindemnification, as there are issues of fact as to whose negligence, if any, caused the plaintiff'saccident (see Erickson v Cross ReadyMix, Inc., 75 AD3d 519, 524 [2010]; George v Marshalls of MA, Inc., 61 AD3d 925, 930 [2009];Chun v Ecco III Enters., 268 AD2d 454, 454-455 [2000]). Under these circumstances, itwas premature to reach the issue of contractual indemnification (see Erickson v Cross ReadyMix, Inc., 75 AD3d at 524; George v Marshalls of MA, Inc., 61 AD3d at 930;Chun v Ecco III Enters., 268 AD2d at 454-455).

The third-party defendant's remaining contention is not properly before this Court.Angiolillo, J.P., Florio, Lott and Austin, JJ., concur.