JACKSON v. PMS (2007)

Supreme Court, Appellate Division, First Department, New York.

Dennis JACKSON, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant, PMS Construction Management, Defendant-Respondent.
[And a Third-Party Action]. PMS Construction Management, Second Third-Party Plaintiff-Respondent, v. Unisys Electric Inc., et al., Second Third-Party Defendants-Appellants.

Decided: March 15, 2007

TOM, J.P., SULLIVAN, WILLIAMS, BUCKLEY, MALONE, JJ.

Morris Duffy Alonso & Faley, New York (Anna J. Ervolina and Andrea M. Alonso of counsel), for Unisys Electric, Inc., appellant. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Louis H. Klein of counsel), for Fratello Construction Corporation, appellant. Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for Dennis Jackson, respondent. Hardin, Kundla, McKeon & Poletto, P.A., New York (Stephen J. Donahue of counsel), for PMS Construction Management, respondent.

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered December 16, 2005, which, to the extent appealed from, granted defendant PMS's motion for summary judgment on its claim for contractual indemnification against third-party defendants Unisys Electric and Fratello Construction, unanimously affirmed, without costs.

The contractual indemnification provision asserted by PMS is not voided by operation of General Obligations Law § 5-322.1, since the provision contains the requisite language limiting the subcontractor's obligation to that permitted by law (see Dutton v. Pankow Bldrs., 296 A.D.2d 321, 322, 745 N.Y.S.2d 520 [2002], lv. denied 99 N.Y.2d 511, 760 N.Y.S.2d 102, 790 N.E.2d 276 [2003] ).

Plaintiff, who is not an appellant herein, cannot be heard to challenge the court's ruling dismissing his claim under Labor Law § 200, and third-party defendant Fratello is in no position to make that argument for him. This appeal is properly limited to the ruling on PMS's third-party claim for contractual indemnification. We have considered all remaining contentions for affirmative relief and find them without merit.

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