RAMIREZ v. 34 10 DEVELOPMENT LLC (2024)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered October 10, 2023, which, insofar as appealed from as limited by the briefs, denied defendants/third-party plaintiffs 34–10 Development LLC and Atria Builders, LLC's (collectively appellants) motion for summary judgment on their claims for contractual indemnification against third-party defendants Executive Group, Inc. and Executive Trim Construction Inc., unanimously modified, on the law, to the extent of awarding them conditional summary judgment on their contractual indemnification claim against third-party defendants, and otherwise affirmed, without costs.

Supreme Court erred in denying appellants’ motion for summary judgment on their contractual indemnification claims against third-party defendants (see generally Zieba v. 345 Main St. Assoc., 171 A.D.3d 482, 95 N.Y.S.3d 789 [1st Dept. 2019]).  The record establishes that the relevant subcontract that included the indemnification provision, which was signed by Executive Group, Inc., applied to both third-party defendants, as the evidence, including the admissions of answering third-party defendant Executive Trim Construction, Inc. d/b/a Executive Group, establishes that Executive Group, Inc. is the same entity as Executive Trim Construction Inc. Further, contrary to the court's finding, the subcontract's indemnification provision requires full indemnification for claims, such as the one here, that arise out of or are connected with the “performance of work” by third-party defendants or those performing the work of the third-party defendants, without the need to show negligence by third-party defendants, where, as here, the record establishes that the indemnitees were not negligent (see e.g. Licata v. AB Green Gansevoort, LLC, 158 A.D.3d 487, 491, 71 N.Y.S.3d 31 [1st Dept. 2018]).