KEEFE v. TISHMAN WESTSIDE CONSTRUCTION OF NEW YORK (2008)

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered January 7, 2008, which, in this action seeking damages for personal injuries arising out of a work-related accident, upon granting the motion by third-party defendant for reargument and renewal, adhered to the original determination granting defendants/third-party plaintiffs' motion for summary judgment against third-party defendant as to contractual indemnification, unanimously affirmed, without costs.

The motion court properly declined to vacate its prior determination in this matter.   Third-party defendant not only supported defendants/third-party plaintiffs' motion for summary judgment dismissing plaintiffs' Labor Law claims, it moved for such relief itself.   The court granted summary judgment dismissing plaintiffs' common law negligence and Labor Law § 200 causes of action and a portion of plaintiff's Labor Law § 241(6) claim, but granted defendants' motion for summary judgment on its claim for indemnification against third-party defendant.   Third-party defendant can not now take the contrary position and argue that defendants were not entitled to summary judgment as to common law negligence since defendants may have been actively negligent in connection with plaintiff's accident and that therefore defendants are not entitled to indemnification (see General Obligations Law § 5-322.1).   Third-party defendant has not established the existence of any new facts that would warrant renewal.