HURLEY v. BEST BUY STORES (2008)

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered January 4, 2008, which, to the extent appealed from as limited by the briefs, granted so much of defendants/third-party plaintiffs and second third-party plaintiffs' motion for summary judgment on their third-party claims for contractual indemnification against Sage Electrical Contracting, unanimously reversed, on the law, without costs, the motion denied, and the matter remanded for further proceedings.

The contractual indemnification provision, which applies to claims “arising out of or in consequence” of performance by Sage of its work on the project, is broad enough to apply here, where plaintiff was injured while performing electrical work for Sage on the project (see Urbina v. 26 Ct. St. Assoc., LLC, 46 A.D.3d 268, 847 N.Y.S.2d 67 [2007] ).   However, defendants never moved for summary judgment dismissing the common law negligence and Labor Law § 200 causes of action against them, or otherwise established their freedom from negligence as a matter of law (see Brennan v. 42nd St. Dev. Project, Inc., 10 A.D.3d 302, 781 N.Y.S.2d 335 [2004] ).   Since there is a possibility plaintiff could prevail on a theory of negligent coordination of demolition and electrical projects that resulted in a dangerous condition allowing a lighting fixture to swing down and hit plaintiff, the grant of summary judgment on the indemnification claims was premature (see McKenna v. Lehrer McGovern Bovis, 302 A.D.2d 329, 331, 756 N.Y.S.2d 181 [2003] ).