BERIHUETE v. 565 WEST 139TH STREET (2019)

Order, Supreme Court, New York County (Kelly O'Neill Levy, J.), entered October 2, 2018, which, to the extent appealed from, denied third-party defendant's (AG) motion for summary judgment dismissing the common-law indemnification claim, unanimously affirmed, without costs.

Plaintiff alleges that she was injured when the bathroom ceiling in her apartment fell on her.  Both plaintiff and the building superintendent testified that there had previously been water damage to the bathroom ceiling in plaintiff's apartment, due to water leaking from the apartment above.  At the time of the incident, AG was removing and replacing the bathroom floor in the apartment above plaintiff's.  In seeking the dismissal of the building owner's common-law indemnification claim, AG failed to demonstrate as a matter of law that the owner was negligent in failing to timely address the condition of the bathroom ceiling in plaintiff's apartment and that AG itself was not negligent in connection with the work it was performing in the apartment above (see Naughton v. City of New York, 94 A.D.3d 1, 10, 940 N.Y.S.2d 21 [1st Dept. 2012] ).

Contrary to AG's contention, the absence of a written contract between itself and the owner does not bar the latter's claim for common-law indemnification (see Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 565 n 2, 347 N.Y.S.2d 22, 300 N.E.2d 403 [1973];  McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 374–375, 929 N.Y.S.2d 556, 953 N.E.2d 794 [2011] ).