| Roldan v Astoria Generating Co., L.P. |
| 2011 NY Slip Op 09615 [90 AD3d 1014] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Jaime Roldan et al., Plaintiffs, v Astoria GeneratingCompany, L.P., et al., Respondents, and Consolidated Edison Company of New York, Inc.,Appellant. |
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Ahmuty, Demers & McManus (Mauro Lilling Naparty LLP, Great Neck, N.Y. [Matthew W.Naparty and Anthony F. DeStefano], of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant Consolidated EdisonCompany of New York, Inc., appeals, as limited by its brief, from so much of a judgment of theSupreme Court, Queens County (Brathwaite-Nelson, J.), entered November 12, 2010, as, upon anorder of the same court entered June 6, 2006, inter alia, granting that branch of the motion of thedefendants Astoria Generating Company, L.P., and Orion Power Holdings, Inc., which was forsummary judgment dismissing its cross claim for contractual indemnification, upon a jury verdicton the issue of liability in favor of the plaintiffs and against it finding that it was 70% at fault inthe happening of the accident and that the defendants Astoria Generating Company, L.P., andOrion Power Holdings, Inc., were 30% at fault in the happening of the accident, and upon thedenial of its motion pursuant to CPLR 4401 for judgment as a matter of law on its cross claim forcontractual indemnification against the defendants Astoria Generating Company, L.P., and OrionPower Holdings, Inc., is, in effect, in favor of the defendants Astoria Generating Company, L.P.,and Orion Power Holdings, Inc., and against it dismissing its cross claim for contractualindemnification.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
In 1999 the defendant Consolidated Edison Company of New York, Inc. (hereinafter ConEdison), sold a generating plant to the defendant Astoria Generating Company, L.P. (hereinafterAstoria), of which the defendant Orion Power Holdings, Inc. (hereinafter Orion), is the parentcompany. The plaintiff Jaime Roldan (hereinafter the plaintiff) was an employee of Con Edisonwho continued to work at the plant after the sale and became an employee of the new owner. In2000 the plaintiff was injured on a portion of the property which had been retained by ConEdison, and thereafter commenced this negligence action.
Con Edison included in its answer a cross claim against Astoria and Orion for contractualindemnification. The Supreme Court granted that branch of Astoria and Orion's motion whichwas for summary judgment dismissing that cross claim, and the plaintiff's case proceeded to trial.[*2]
The trial court properly rejected Con Edison's argumentsat trial that Astoria and Orion must indemnify it pursuant to Section 2.02 of a contract betweenCon Edison and Astoria, dated March 2, 1999, and entitled "Astoria Continuing Site Agreement."The argument was rejected in connection with Astoria and Orion's summary judgment motionprior to trial, and that determination became the law of the case (see Martin v City ofCohoes, 37 NY2d 162, 165 [1975]; RPG Consulting, Inc. v Zormati, 82 AD3d 739, 740 [2011]).Moreover, the appeal from the judgment brings up for review the order granting that branch ofAstoria and Orion's motion which was for summary judgment dismissing Con Edison's crossclaim for contractual indemnification (see CPLR 5501 [a] [1]). We conclude that theSupreme Court correctly granted that branch of Astoria and Orion's motion.
The trial court also properly rejected Con Edison's argument during trial that Astoria andOrion must indemnify it pursuant to Article X of a contract between Con Edison and Astoria,also dated March 2, 1999, and entitled "Generating Plant and Gas Turbine Asset Purchase andSale Agreement." Con Edison offered no justification whatsoever for the failure to present factsconcerning the existence and contents of that agreement in connection with or opposition toAstoria and Orion's summary judgment motion prior to trial (see CPLR 2221 [e] [2], [3];Worrell v Parkway Estates, LLC, 43AD3d 436, 437 [2007]).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Angiolillo, J.P., Dickerson, Leventhal and Hall, JJ., concur.