ALESIUS v. H.T. Steel Erectors, Inc., third-party defendant-respondent. (2005)

In an action to recover damages for personal injuries, etc., the defendants third-party plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Peck, J.), dated July 2, 2004, as granted the cross motion of the third-party defendant for summary judgment dismissing the third-party cause of action for contractual indemnification.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is denied, and the third-party cause of action for contractual indemnification is reinstated.

 Pursuant to General Obligation Law § 5-322.1, a clause in a construction contract which purports to indemnify a party for its own negligence is void (see Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 658 N.Y.S.2d 903, 680 N.E.2d 1200;  Caruso v. Inhilco, Inc., 2 A.D.3d 662, 768 N.Y.S.2d 639;  Carriere v. Whiting Turner Contr., 299 A.D.2d 509, 750 N.Y.S.2d 633), but the clause may nevertheless be enforced where the party to be indemnified is found to be free of any negligence (see Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 556 N.Y.S.2d 991, 556 N.E.2d 430;  Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., supra ).   The third-party defendant failed to establish its entitlement to judgment as a matter of law, and its cross motion for summary judgment dismissing the third-party cause of action for contractual indemnification should have been denied (see Brennan v. R.C. Dolner, Inc., 14 A.D.3d 639, 789 N.Y.S.2d 312;  Marano v. Commander Elec., Inc., 12 A.D.3d 571, 785 N.Y.S.2d 109;  Kozerski v. Deer Run Homeowners Assn., 217 A.D.2d 841, 629 N.Y.S.2d 518;  see also Parelli v. Talbot Store, 308 A.D.2d 569, 765 N.Y.S.2d 372).   There are triable issues of fact as to whether the defendant third-party-plaintiff was negligent and, if so, whether its negligence was the proximate cause of the plaintiff's alleged injuries, based upon the conflicting deposition testimony regarding the condition of the floor of the job site at the time of the accident.