COLYER v. MART CORPORATION (2000)

 Third-party defendant Margret M. Diehl, d/b/a Mirage Development (Mirage), appeals from those portions of an order that granted the motion of defendants-third-party plaintiffs, K Mart Corporation (K Mart) and Dominick P. Massa and Sons, Inc. (Massa), for summary judgment on their third-party claims against Mirage seeking common-law and contractual indemnification and that denied the motion of Mirage for summary judgment on its cross claim seeking common-law indemnification from third-party defendant Larry Colyer Masonry, Inc. (LCM).  Supreme Court erred in granting that part of the motion of K Mart and Massa seeking summary judgment on their third-party claim for contractual indemnification.   The indemnification provision is triggered only in the event of a finding of negligence on the part of Mirage or its agents, employees or subcontractors.   There is no basis in the record to find such negligence as a matter of law (see, Malecki v. Wal-Mart Stores, 222 A.D.2d 1010, 1011, 635 N.Y.S.2d 888;  Baskewicz v. Rochester Gas & Elec. Corp., 217 A.D.2d 922, 923, 629 N.Y.S.2d 888;  Hayes v. Crane Hogan Structural Sys., 191 A.D.2d 978, 979, 594 N.Y.S.2d 923;  Stimson v. Lapp Insulator Co., 186 A.D.2d 1052, 1053, 588 N.Y.S.2d 494), and thus we modify the order by denying that part of the motion.

 The court properly granted, however, that part of the motion of K Mart and Massa for summary judgment on their third-party claim for common-law indemnification.   The right of common-law indemnification belongs to parties determined to be vicariously liable without proof of any negligence or active fault on their own part (see, Kemp v. Lakelands Precast, 55 N.Y.2d 1032, 1034, 449 N.Y.S.2d 710, 434 N.E.2d 1077;  Kelly v. Diesel Constr. Div. of Carl A. Morse, 35 N.Y.2d 1, 5-7, 358 N.Y.S.2d 685, 315 N.E.2d 751).   As a matter of law, K Mart and Massa are such parties, given their demonstrated lack of supervision, direction or control over the work (see, Kemp v. Lakelands Precast, supra, at 1034, 449 N.Y.S.2d 710, 434 N.E.2d 1077;  Livecchi v. Eastman Kodak Co., 258 A.D.2d 916, 685 N.Y.S.2d 515;  Aman v. Federal Express Corp., 247 A.D.2d 879, 880, 668 N.Y.S.2d 804).   An owner's or contractor's general authority to coordinate the work and monitor its progress and safety conditions is not a basis for denying common-law indemnification (see, Siago v. Garbade Constr. Co., 262 A.D.2d 945, 701 N.Y.S.2d 538;  Boshnakov v. Higgins-Kieffer, Inc., 255 A.D.2d 983, 680 N.Y.S.2d 337).   The obligation of common-law indemnification runs against those parties who, by virtue of their direction and supervision over the injury-producing work, were actively at fault in bringing about the injury (see, Felker v. Corning Inc., 90 N.Y.2d 219, 226, 660 N.Y.S.2d 349, 682 N.E.2d 950;  Glielmi v. Toys “R” Us, 62 N.Y.2d 664, 666-667, 476 N.Y.S.2d 283, 464 N.E.2d 981;  Frank v. Meadowlakes Dev. Corp., 256 A.D.2d 1141, 1143, 686 N.Y.S.2d 540).   As a matter of law, Mirage is such a party, given the uncontroverted evidence that it had the contractual obligation to supervise and control the work (see, Felker v. Corning Inc., supra, at 226, 660 N.Y.S.2d 349, 682 N.E.2d 950;  Golda v. Hutchinson Enters., 247 A.D.2d 863, 668 N.Y.S.2d 816).   We nonetheless further modify the order by deleting the word “conditional” from the second ordering paragraph.   Plaintiffs were awarded summary judgment on liability against Massa and K Mart, and Mirage is obligated at common law to indemnify K Mart and Massa for their costs incurred in defense of plaintiffs' action (see, Chapel v. Mitchell, 84 N.Y.2d 345, 347-348, 618 N.Y.S.2d 626, 642 N.E.2d 1082) irrespective of whether defendants ultimately are ordered to pay damages to plaintiffs (see, Reynolds v. Ciminelli-Walbridge, 261 A.D.2d 839, 840, 689 N.Y.S.2d 592).

 The court properly denied the motion of Mirage for summary judgment on its cross claim seeking common-law indemnification from LCM. Mirage has been held, as a matter of law, to be obligated to indemnify K Mart and Massa.   Because indemnification runs only in favor of a party not actively at fault against a party actively at fault, Mirage is not entitled to common-law indemnification from LCM (cf., Leo v. Artco Contr., 266 A.D.2d 808, 697 N.Y.S.2d 808;  Szymanski v. Nabisco, Inc., 256 A.D.2d 1154, 1155, 684 N.Y.S.2d 122;  Eastman v. Volpi Mfg. USA, Co., 229 A.D.2d 913, 645 N.Y.S.2d 214).   The relative responsibility of those two entities raises an issue of apportionment or contribution (see generally, Rosado v. Proctor & Schwartz, 66 N.Y.2d 21, 23-25, 494 N.Y.S.2d 851, 484 N.E.2d 1354).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: