Michael F. McAllister, et al., plaintiffs, v. Construction Consultants L.I., Inc., defendant third-party plaintiff-respondent, et al., defendant;  C. Glasser Construction Corp., third-party defendant-appellant. (2011)

Submitted—April 12, 2011

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., and a related third-party action, the third-party defendant appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated September 24, 2009, which granted the motion of the defendant third-party plaintiff for conditional summary judgment on its third-party cause of action for contractual indemnification.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant third-party plaintiff for conditional summary judgment on its third-party cause of action for contractual indemnification is denied as premature.

“[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor” (Cava Constr.   Co., Inc. v. Gealtec Remodeling Corp., 58 AD3d 660, 662, citing General Obligations Law § 5–322.1;  see Reynolds v. County of Westchester, 270 A.D.2d 473).   Here, the Supreme Court erred in granting the motion of the defendant third-party plaintiff which was for conditional summary judgment on its third-party cause of action for contractual indemnification, as there are issues of fact as to whose negligence, if any, caused the plaintiff's accident (see Erickson v. Cross Ready Mix, Inc., 75 AD3d 519, 524;  George v. Marshalls of MA, Inc., 61 AD3d 925, 930;  Chun v. Ecco III Enters., 268 A.D.2d 454, 454–455).   Under these circumstances, it was premature to reach the issue of contractual indemnification (see Erickson v. Cross Ready Mix, Inc., 75 AD3d at 524;  George v. Marshalls of MA, Inc., 61 AD3d at 930;  Chun v. Ecco III Enters., 268 A.D.2d at 454–455).

The third-party defendant's remaining contention is not properly before this Court.

ANGIOLILLO, J.P., FLORIO, LOTT and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court