MARTINEZ v. ST DIL LLC (2021)

Supreme Court, Appellate Division, First Department, New York.

Victor MARTINEZ, Plaintiff, v. ST–DIL LLC, et al., Defendants–Appellants.
The Liberty Blue Group LLC, Third–Party Plaintiff–Appellant, v. EM Windsor Construction Company, Inc., Third–Party Defendant–Respondent.
ST–DIL LLC, Second Third–Party Plaintiff–Appellant, v. EM Windsor Construction Company, Inc., Second Third–Party Defendant–Respondent.

14685

Decided: November 23, 2021

Kern, J.P., Gesmer, González, Shulman, Higgitt, JJ.

Baxter Smith & Shapiro, P.C., Hicksville (Sim R. Shapiro of counsel), for appellants. Devitt Spellman & Barrett, LLP, Smithtown (Christi M. Kunzig of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered September 15, 2020, which, to the extent appealed from as limited by the briefs, denied defendants’ motion for summary judgment on their contractual indemnification and breach of contract claims against third-party and second third-party defendant EM Windsor Construction Company, Inc., unanimously affirmed, without costs.

Summary judgment in favor of defendants, the construction project owner and general contractor, on their claim for contractual indemnification against subcontractor EM Windsor is precluded by issues of fact as to whether they supervised and controlled the method and means of plaintiff's work and were solely responsible for plaintiff's accident (see Cackett v. Gladden Props., LLC, 183 A.D.3d 419, 422, 123 N.Y.S.3d 581 [1st Dept. 2020]; Nenadovic v. P.T. Tenants Corp., 94 A.D.3d 534, 535, 942 N.Y.S.2d 474 [1st Dept. 2012]).

Defendants failed to establish prima facie that EM Windsor failed to procure insurance on their behalf and thus are not entitled to summary judgment on their claim for breach of contract, regardless of the sufficiency of EM Windsor's opposition (see Komonaj v. Curanovic, 90 A.D.3d 505, 934 N.Y.S.2d 304 [1st Dept. 2011]).

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