| Konsky v Escada Hair Salon, Inc. |
| 2014 NY Slip Op 00207 [113 AD3d 656] |
| January 15, 2014 |
| Appellate Division, Second Department |
| Maya Konsky et al., Plaintiffs, v Escada HairSalon, Inc., Defendant and Third-Party Plaintiff-Respondent. Brighton Realty Co.,Third-Party Defendant and Second Third-Party Plaintiff-Appellant; Yuksel Ozuyman,Second Third-Party Defendant-Respondent. |
—[*1] Cullen and Dykman LLP, New York, N.Y. (Diana Neyman of counsel), fordefendant and third-party plaintiff-respondent and second third-partydefendant-respondent.
In an action to recover damages for personal injuries, etc., the third-partydefendant/second third-party plaintiff appeals, as limited by its brief, from so much of anorder of the Supreme Court, Kings County (Bunyan, J.), dated June 20, 2012, as deniedthose branches of its motion which were, in effect, for summary judgment dismissing thethird-party complaint and for summary judgment on its third counterclaim and on itssecond third-party cause of action for contractual indemnification.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the motion which was for summary judgment dismissing thecause of action for common-law indemnification in the third-party complaint andsubstituting therefor a provision granting that branch of the motion; as so modified, theorder is affirmed insofar as appealed from, without costs or disbursements.
On November 20, 2007, the plaintiff Maya Konsky (hereinafter the injured plaintiff),a customer of the defendant Escada Hair Salon, Inc. (hereinafter Escada), allegedly wasinjured when she fell from a 7½-inch-high platform in the salon as she attempted tohang her coat on a coat rack located adjacent to the edge of the platform. At herdeposition, the injured plaintiff testified that she did not see the end of the platform. Theowner of the salon, the second third-party defendant, Yuksel Ozuyman, leased thepremises from the third-party defendant/second third-party plaintiff, Brighton Realty Co.(hereinafter Brighton Realty). The injured plaintiff, and her husband suing derivatively,commenced this action against Escada to recover damages for, inter alia, personalinjuries, alleging that Escada was negligent in situating a coat rack adjacent to aplatform. Escada commenced a third-party action against Brighton Realty, assertingcauses of action for common-law indemnification and contribution, and to recoverdamages for breach of contract and negligence in the performance of repairs,maintenance, operation, and supervision of the premises. Brighton Realty thencommenced [*2]a second third-party action againstOzuyman, asserting causes of action for common-law contribution, contractualindemnification, common-law indemnification, and to recover damages for breach of acontract to procure insurance and failure to provide a defense.
The Supreme Court should have granted that branch of Brighton Realty's motionwhich was for summary judgment dismissing the cause of action for common-lawindemnification in the third-party complaint. "[T]he key element of a common-law causeof action for indemnification is not a duty running from the indemnitor to the injuredparty, but rather is 'a separate duty owed the indemnitee by the indemnitor' " (Raquetv Braun, 90 NY2d 177, 183 [1997], quoting Mas v Two Bridges Assoc., 75NY2d 680, 690 [1990]; seeLovino, Inc. v Lavallee Law Offs., 96 AD3d 909, 909-910 [2012]). The dutythat forms the basis for the liability arises from the principle that "every one isresponsible for the consequences of his own negligence, and if another person has beencompelled . . . to pay the damages which ought to have been paid by thewrongdoer, they may be recovered from him" (Oceanic Steam Nav. Co. [Ltd.] vCompania Transatlantica Espanola, 134 NY 461, 468 [1892]; see McDermott vCity of New York, 50 NY2d 211, 216-217 [1980]). " 'Since the predicate ofcommon-law indemnity is vicarious liability without actual fault on the part of theproposed indemnitee, it follows that a party who has itself actually participated to somedegree in the wrongdoing cannot receive the benefit of the doctrine' " (Henderson vWaldbaums, 149 AD2d 461, 462 [1989], quoting Trustees of Columbia Univ. vMitchell/Giurgola Assoc., 109 AD2d 449, 453 [1985]).
Here, Brighton Realty established its prima facie entitlement to judgment as a matterof law dismissing the cause of action for common-law indemnification in the third-partycomplaint by showing that Escada's liability to the plaintiffs, if any, would be based onits actual wrongdoing in failing to properly maintain the demised premises, not on itsvicarious liability for Brighton Realty's conduct (see Guzman v Haven Plaza Hous.Dev. Fund Co., 69 NY2d 559, 568-569 [1987]; Reimold v Walden Terrace, Inc., 85 AD3d 1144,1146-1147 [2011]; Ruiz vGriffin, 50 AD3d 1007, 1009-1010 [2008]; Corley v Country Squire Apts., Inc., 32 AD3d 978, 978[2006]; Consolidated Rail Corp. v Hunts Point Term. Produce Coop. Assn., Inc.,11 AD3d 341, 342 [2004]). In opposition, Escada failed to raise a triable issue of fact.
However, Brighton Realty failed to establish its prima facie entitlement to judgmentas a matter of law dismissing the cause of action for common-law contribution in thethird-party complaint. The evidence submitted in support of its motion did not eliminatetriable issues of fact as to whether the platform from which the injured plaintiff fell was adefective condition and whether repair of the platform was a structural repair for whichBrighton Realty was responsible under the lease (see Repetto v Alblan Realty Corp., 97 AD3d 735, 737[2012]; Alnashmi v CertifiedAnalytical Group, Inc., 89 AD3d 10, 18 [2011]; see also Raquet vBraun, 90 NY2d at 183; Sommer v Federal Signal Corp., 79 NY2d 540, 559[1992]; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d at 568 n 5;Garrett v Holiday Inns, 58 NY2d 253, 261 [1983]). Since Brighton Realty failedto satisfy its prima facie burden as the movant, the Supreme Court properly denied thatbranch of its motion which was for summary judgment dismissing the cause of action forcommon-law contribution in the third-party complaint, regardless of the sufficiency ofEscada's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]).
A party's right to contractual indemnification depends upon the specific language ofthe relevant contract (seeSawicki v GameStop Corp., 106 AD3d 979, 981 [2013]; Alfaro v 65 W. 13th Acquisition,LLC, 74 AD3d 1255 [2010]; Sherry v Wal-Mart Stores E., L.P., 67 AD3d 992, 994[2009]). The promise to indemnify should not be found unless it can be clearly impliedfrom the language and purpose of the entire agreement and the surroundingcircumstances (see Hooper Assoc. v AGS Computers, 74 NY2d 487, 491-492[1989]). "[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]). TheSupreme Court properly denied that branch of Brighton Realty's motion which was forsummary judgment on its third-party counterclaim against Escada, and second third-partycause of action against Ozuyman, for contractual indemnification, as there are triableissues of fact as to whose negligence, if anyone's, caused the injured plaintiff's accident.Under these circumstances, it would be premature to award Brighton Realty summaryjudgment (see George v Marshalls of MA, Inc., 61 [*3]AD3d 925, 930 [2009]; Alexander v New York City Tr., 34 AD3d 312, 314[2006]; Barnes v DeFoe/Halmar, 271 AD2d 387, 388 [2000]).
Brighton Realty's remaining contention is without merit. Skelos, J.P., Balkin,Leventhal and Sgroi, JJ., concur.