PRESSLEY v. Gregory Soros, Defendant, (2024)

Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered on or about July 17, 2023, which, to the extent appealed from as limited by the briefs, granted defendant 535 Greenwich LLC's (Greenwich) motion for summary judgment on its cross-claims against defendant R.J.C. Mechanical Corp. (RJC), unanimously reversed, on the law, without costs, and the motion denied.

Supreme Court correctly identified an issue of fact as to RJC's negligence, which precludes summary judgment on Greenwich's cross-claim against RJC due to the negligence trigger contained in the applicable indemnification agreement (see e.g. Arias v. Sanitation Salvage Corp., 199 A.D.3d 554, 557, 159 N.Y.S.3d 14 [1st Dept. 2021];  see generally Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 177–178 & n. 3, 556 N.Y.S.2d 991, 556 N.E.2d 430 [1990]).  That same issue of fact precludes summary judgment in Greenwich's favor on its common-law indemnification cross-claim against RJC (see generally Correia v. Professional Data Mgt., 259 A.D.2d 60, 65, 693 N.Y.S.2d 596 [1st Dept. 1999];  Naughton v. City of New York, 94 A.D.3d 1, 10, 940 N.Y.S.2d 21 [1st Dept. 2012]).  In addition, Greenwich has abandoned its breach of contract cross-claim for failure to procure insurance by failing to defend it on appeal (see Norris v. Innovative Health Sys., Inc., 184 A.D.3d 471, 473, 126 N.Y.S.3d 122 [1st Dept. 2020]).  In any event, RJC's insurer has already agreed to defend and indemnify Greenwich in this action.