BRENNAN v. (and a second third-party action). (2005)

In an action to recover damages for personal injuries, etc., the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), dated August 6, 2003, as denied that branch of its motion which was for summary judgment dismissing the causes of action for contractual indemnification asserted in the third-party complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The third-party defendant failed to demonstrate, prima facie, its entitlement to judgment as a matter of law with regard to the causes of action for contractual indemnification asserted in the third-party complaint (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Contrary to the third-party defendant's argument, absent a finding of negligence on the part of the third-party plaintiff, the prohibition against indemnifying a contractor for its own negligence in General Obligations Law § 5-322.1 is inapplicable (see Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 179, 556 N.Y.S.2d 991, 556 N.E.2d 430).   Here, no finding has yet been made with respect to the third-party plaintiff's fault, if any, in the happening of the accident.   Thus, an award of summary judgment dismissing the causes of action for contractual indemnification would have been premature (see Maxwell v. Toys “R” Us, 258 A.D.2d 630, 685 N.Y.S.2d 760).

The third-party defendant's remaining contentions are without merit.