RODDY v. Abhann Productions, Inc., et al., Defendants-Respondents. (2007)

Order, Supreme Court, New York County (Louis B. York, J.), entered March 8, 2007, which denied defendant Gershwin Theatre's motion for summary judgment on its contractual indemnification claim against former defendant Abhann Productions, unanimously reversed, on the law, with costs, and conditional summary judgment granted on that claim.

 Summary relief is appropriate on a claim for contractual indemnification where, as here, the license agreement is unambiguous and clearly sets forth the parties' intention that a licensee indemnify the licensor for the injuries sustained (see Rodrigues v. N & S Bldg. Contrs., Inc., 5 N.Y.3d 427, 805 N.Y.S.2d 299, 839 N.E.2d 357 [2005];  Karp v. Federated Dept. Stores, 301 A.D.2d 574, 754 N.Y.S.2d 27 [2003] ).   Gershwin established such prima facie entitlement by demonstrating, through deposition testimony and other evidence, that the fogger machines and floor that caused plaintiff's injury were under the exclusive control of Abhann, and that Abhann had directed every aspect of the work through which plaintiff was injured (see Matter of New York City Asbestos Litig., 41 A.D.3d 299, 302-303, 838 N.Y.S.2d 76 [2007] ).   Abhann failed to meet its burden of establishing the existence of an issue of fact in this regard (see Nicholas v. Epo-Harvey Apts., Ltd. Partnership, 31 A.D.3d 1174, 818 N.Y.S.2d 880 [2006] ).

 In light of the unrebutted prima facie demonstration that Gershwin was not negligent in the occurrence of the accident, General Obligations Law § 5-322.1 is inapplicable (see Castilla v. K.A.B. Realty, Inc., 37 A.D.3d 510, 829 N.Y.S.2d 691 [2007];  Davis v. All State Assoc., 23 A.D.3d 607, 806 N.Y.S.2d 669 [2005] ).   We further note that that section does not prohibit indemnity where, as here, a lessor and lessee freely enter into an indemnification agreement whereby they use insurance to allocate between themselves the risk of liability to third parties (see Hogeland v. Sibley, Lindsay & Curr Co., 42 N.Y.2d 153, 161, 397 N.Y.S.2d 602, 366 N.E.2d 263 [1977];  Duane Reade v. 405 Lexington, LLC, 22 A.D.3d 108, 800 N.Y.S.2d 664 [2005] ).

 Conditional summary judgment is appropriate here notwithstanding the fact that a judgment has yet to be rendered or paid by Nederlander or Gershwin in the main action, since it serves the interest of justice and judicial economy in affording the indemnitee “the earliest possible determination as to the extent to which he may expect to be reimbursed” (McCabe v. Queensboro Farm Prods., 22 N.Y.2d 204, 208, 292 N.Y.S.2d 400, 239 N.E.2d 340 [1968];  see also Lowe v. Dollar Tree Stores, Inc., 40 A.D.3d 264, 835 N.Y.S.2d 161 [2007] ).

The court properly denied Gershwin's application for counsel fees on its motion for contractual indemnification, since neither the licensing agreement in question nor the general rule provides for it (see Chapel v. Mitchell, 84 N.Y.2d 345, 349, 618 N.Y.S.2d 626, 642 N.E.2d 1082 [1994];  State of New York v. Rice Mohawk U.S. Constr. Co., 262 A.D.2d 114, 692 N.Y.S.2d 43 [1999];  Perchinsky v. State of New York, 232 A.D.2d 34, 39-40, 660 N.Y.S.2d 177 [1997], lv. dismissed 91 N.Y.2d 830, 666 N.Y.S.2d 561, 689 N.E.2d 531 [1997] and denied 93 N.Y.2d 812, 695 N.Y.S.2d 540, 717 N.E.2d 699 [1999] ).

We have considered the parties' remaining contentions and find them unavailing.