| Mikelatos v Theofilaktidis |
| 2013 NY Slip Op 02382 [105 AD3d 822] |
| April 10, 2013 |
| Appellate Division, Second Department |
| Panagiotis Mikelatos, Plaintiff, v TheodorosTheofilaktidis et al., Defendants, and TMA Construction, Inc., Defendant/Third-PartyPlaintiff-Appellant. P.P. Marble & Tile Corp., Doing Business as P&P Marble & TileCorp., Third-Party Defendant-Respondent. |
—[*1] Georgaklis & Mallas, PLLC, Brooklyn, N.Y. (George Batchvarov of counsel), forthird-party defendant-respondent.
In an action to recover damages for personal injuries, the defendant/third-partyplaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court,Queens County (Brathwaite Nelson, J.), dated May 13, 2011, as denied its motion forsummary judgment on its third-party causes of action for contractual and common-lawindemnification, and granted those branches of the cross motion of the third-partydefendant which were for summary judgment dismissing the third-party causes of actionfor contractual and common-law indemnification.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, a principal of the third-party defendant P.P. Marble & Tile Corp.,doing business as P&P Marble & Tile Corp. (hereinafter P&P), allegedly was injuredwhen he slipped on ice and fell on a driveway at a construction site. P&P was asubcontractor hired by the defendant/third-party plaintiff, TMA Construction, Inc.(hereinafter TMA), the general contractor, to perform tile work in the interior of abuilding under construction. The contract between TMA and P&P required P&P toindemnify TMA "from and against all claims, damages, losses and expenses. . . arising out of or resulting from performance of [P&P's] Work under this[contract] . . . but only to the extent caused by the negligent acts oromissions of [P&P]." TMA moved for summary judgment on its third-party causes ofaction for contractual and common-law indemnification, and P&P cross-moved, interalia, for summary judgment dismissing the third-party causes of action for contractualand common-law indemnification.
"[A] party seeking contractual indemnification must prove itself free fromnegligence, because to the extent its negligence contributed to the accident, it cannot beindemnified therefor" (CavaConstr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2009];see General Obligations Law § 5-322.1; Ventimiglia v Thatch, Ripley &Co., LLC, 96 AD3d 1043, 1047-1048 [2012]; Rodriguez v [*2]Tribeca 105, LLC, 93 AD3d 655 [2012]; Baillargeon v Kings CountyWaterproofing Corp., 91 AD3d 686, 688 [2012]). " 'Where, as . . .here, a plaintiff's injuries stem not from the manner in which the work was beingperformed, but, rather, from a dangerous condition on the premises, a general contractormay be liable in common-law negligence and under Labor Law § 200 if it hascontrol over the work site and actual or constructive notice of the dangerous condition' "(Hirsch v Blake Hous.,LLC, 65 AD3d 570, 571 [2009], quoting Keating v Nanuet Bd. of Educ., 40 AD3d 706, 708-709[2007]).
TMA failed to establish, prima facie, that it lacked control over the work site ornotice of the allegedly dangerous condition, thus precluding a finding, as a matter of law,that it was not negligent (see Hirsch v Blake Hous., LLC, 65 AD3d at 571;Keating v Nanuet Bd. of Educ., 40 AD3d at 708). While the Supreme Court hadthe discretion to consider the new argument made in TMA's reply that it was free fromnegligence where, as here, the opposing party had the opportunity to respond to thenewly presented claim (see e.g.Hoffman v Kessler, 28 AD3d 718, 719 [2006]; Basile v Grand UnionCo., 196 AD2d 836, 837 [1993]; Fiore v Oakwood Plaza Shopping Ctr., 164AD2d 737, 739 [1991]), the bald, conclusory affirmation of TMA's attorney, submittedin reply, was not based on personal knowledge, and thus, was insufficient to make aprima facie showing of entitlement to judgment as a matter of law (see Carthans v Grenadier RealtyCorp., 38 AD3d 489 [2007]).
Moreover, on its cross motion for summary judgment dismissing TMA's third-partycause of action for contractual indemnification, P&P demonstrated its prima faceentitlement to judgment as a matter of law by establishing that the plaintiff's accident wasnot "caused by the negligent acts or omissions of [P&P]," such that the indemnificationclause was not triggered (seePerales v First Columbia 1200 NSR, LLC, 88 AD3d 1213, 1214 [2011]; Kogan v North St. Community,LLC, 81 AD3d 429, 430 [2011]; see generally Brown v Two Exch. PlazaPartners, 76 NY2d 172, 178 [1990]). In opposition, TMA did not raise a triable issueof fact.
Accordingly, that branch of TMA's motion which was for summary judgment on itsthird-party cause of action for contractual indemnification was properly denied, and thatbranch of P&P's cross motion which was for summary judgment dismissing that cause ofaction was properly granted.
To establish a claim for common-law indemnification, the party seeking indemnitymust prove not only that it was not guilty of any negligence beyond the statutory liability,but must also prove that the proposed indemnitor was guilty of some negligence thatcontributed to the cause of the accident (see Correia v Professional Data Mgt.,259 AD2d 60, 65 [1999]). Since TMA failed to establish, prima facie, its own freedomfrom any negligence beyond the statutory liability, that branch of its motion which wasfor summary judgment on its third-party cause of action for common-law indemnificationwas properly denied (see Amit vHineni Heritage Ctr., 49 AD3d 574 [2008]; Correia v Professional DataMgt., 259 AD2d at 65). Moreover, P&P, which submitted evidence showing, amongother things, that it had no duty to remove snow at the premises, established its primafacie entitlement to judgment as a matter of law dismissing TMA's third-party cause ofaction for common-law indemnification (see Guerra v St. Catherine of Sienna, 79 AD3d 808, 809[2010]; Curreri v Heritage Prop.Inv. Trust, Inc., 48 AD3d 505, 507 [2008]). In opposition, TMA did not raise atriable issue of fact. Accordingly, that branch of P&P's cross motion which was forsummary judgment dismissing the third-party cause of action for common-lawindemnification was properly granted. Eng, P.J., Dickerson, Hall and Lott, JJ., concur.