| Rodriguez v Tribeca 105, LLC |
| 2012 NY Slip Op 01667 [93 AD3d 655] |
| March 6, 2012 |
| Appellate Division, Second Department |
| Manuel Rodriguez et al., Respondents, v Tribeca 105,LLC, Respondent-Appellant, and RAF Construction & Development Corp.,Defendant/Third-Party Plaintiff-Respondent-Appellant. More Air Mechanical Services Co., Inc.,Third-Party Defendant-Appellant-Respondent. |
—[*1] Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (Matthew J. Zizzamia ofcounsel), for defendant-respondent-appellant. Marshall, Dennehey, Warner, Coleman & Goggin, New York, N.Y. (Michael Gallagher andJeffrey J. Imeri of counsel), for defendant/third-party plaintiff-respondent-appellant. Sacks and Sacks LLP, New York, N.Y. (Scott N. Singer of counsel), forplaintiffs-respondents.
In an action to recover damages for personal injuries, etc., the third-party defendant appeals,as limited by its brief, from so much of an order of the Supreme Court, Queens County (Butler,J.), dated December 9, 2010, as granted the plaintiffs' motion for summary judgment on so muchof the complaint as alleged a violation of Labor Law § 240 (1), granted those branches ofthe cross motion of the defendant/third-party plaintiff which were for summary judgmentdismissing so much of the complaint as alleged a violation of Labor Law § 200 andcommon-law negligence insofar as asserted against it and for summary judgment on thethird-party cause of action for contractual indemnification, and granted that branch of the crossmotion of the defendant Tribeca 105, LLC, which was for conditional summary judgment on thatdefendant's cross claim for contractual indemnification against the third-party defendant, and thedefendant/third-party plaintiff and the defendant Tribeca 105, LLC, separately cross-appeal, aslimited by their respective briefs, from so much of the same order as granted the plaintiffs'motion for summary judgment on so much of the complaint as alleged a violation of Labor Law§ 240 (1).
Ordered that the appeal by the third-party defendant from so much of the order as grantedthose branches of the cross motion of the defendant/third-party plaintiff which were for summaryjudgment dismissing so much of the complaint as alleged a violation of Labor Law § 200[*2]and common-law negligence insofar as asserted against it isdismissed, as the third-party defendant is not aggrieved by that portion of the order appealedfrom (see CPLR 5511); and it is further,
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthe plaintiffs' motion for summary judgment on so much of the complaint as alleged a violationof Labor Law § 240 (1), and substituting therefor a provision denying the motion, and (2)by deleting the provision thereof granting that branch of the cross motion of thedefendant/third-party plaintiff which was for summary judgment on its third-party cause of actionfor contractual indemnification against the third-party defendant, and substituting therefor aprovision denying that branch of the cross motion; as so modified, the order is affirmed insofar asreviewed on the appeal, without costs or disbursements.
The plaintiff Manuel Rodriguez allegedly fell from a ladder at a construction site andsustained injuries. Manuel and his wife, suing derivatively, commenced this action to recoverdamages for personal injuries against the owner of the site, the defendant Tribeca 105, LLC(hereinafter Tribeca), and the general contractor on the project, the defendant RAF Construction& Development Corp. (hereinafter RAF). RAF commenced a third-party action seeking, interalia, contractual indemnification against Manuel's employer and a subcontractor on the project,More Air Mechanical Services Co., Inc. (hereinafter More). Tribeca asserted cross claims againstMore seeking, among other things, contractual indemnification.
In an order dated December 9, 2010, the Supreme Court, inter alia, granted the plaintiffs'motion for summary judgment on so much of the complaint as alleged a violation of Labor Law§ 240 (1), granted those branches of RAF's cross motion which were for summaryjudgment dismissing so much of the complaint as alleged a violation of Labor Law § 200and common-law negligence insofar as asserted against it and for summary judgment on itsthird-party cause of action for contractual indemnification against More, and granted that branchof Tribeca's cross motion which was for conditional summary judgment on its cross claim forcontractual indemnification against More. More appeals, and RAF and Tribeca separatelycross-appeal from the order. We modify.
The Supreme Court should have denied the plaintiffs' motion for summary judgment on somuch of the complaint as alleged a violation of Labor Law § 240 (1). In opposition to theplaintiffs' prima facie showing of their entitlement to judgment as a matter of law, the defendantsraised a triable issue of fact, requiring the denial of the plaintiffs' motion. The depositiontestimony of Manuel's coworker as to how the accident occurred, which was inconsistent withManuel's deposition testimony describing how the accident occurred, would support a findingthat Manuel's alleged negligence was the sole proximate cause of his injuries (see Merriman v Integrated Bldg. Controls,Inc., 84 AD3d 897 [2011]).
Furthermore, the Supreme Court should have denied that branch of RAF's cross motionwhich was for summary judgment on its third-party cause of action for contractualindemnification against More. "[A] party seeking contractual indemnification must prove itselffree from negligence, because to the extent its negligence contributed to the accident, it cannot beindemnified therefor" (Cava Constr.Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2009]; see GeneralObligations Law § 5-322.1; Reisman v Bay Shore Union Free School Dist., 74 AD3d 772, 773[2010]; see also Dalvano v RacanelliConstr. Co., Inc., 86 AD3d 550, 551 [2011]). Here, in cross-moving for summaryjudgment on its third-party cause of action for contractual indemnification, RAF failed toeliminate the existence of all triable issues of fact regarding its negligence. Thus, the SupremeCourt should have denied that branch of RAF's cross motion which was for summary judgmenton its third-party cause of action for contractual indemnification against More, without regard tothe sufficiency of the opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]).
Finally, the Supreme Court properly granted that branch of Tribeca's cross motion which wasfor conditional summary judgment on its cross claim for contractual indemnification againstMore. "A court may render a conditional judgment on the issue of indemnity pendingdetermination of the primary action in order that the indemnitee may obtain the earliest possible[*3]determination as to the extent to which he or she may expectto be reimbursed provided that there are no issues of fact concerning the indemnitee's activenegligence" (George v Marshalls of MA, Inc., 61 AD3d 931, 932 [2009]). Here, there areno triable issues of fact concerning any active negligence on Tribeca's part.
Tribeca's remaining contention is not properly before this Court. Angiolillo, J.P., Florio,Chambers and Hall, JJ., concur. [Prior Case History: 29 Misc 3d 1234(A), 2010 NY Slip Op52144(U).]