McCOLLIN v. NEW YORK CITY HOUSING AUTHORITY

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

Edmund McCOLLIN, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Defendant.

New York City Housing Authority, Third-Party Plaintiff-Appellant, v. NYNEX Corp., et al., Third-Party Defendants, Mackenzie Group, Inc., Third-Party Defendant-Respondent.

Decided: October 18, 2001

SULLIVAN, P.J., WILLIAMS, TOM, MAZZARELLI and ANDRIAS, JJ. Herbert Rubin, for New York City Housing Authority. Elizabeth Gelfand Kastner, for Mackenzie Group, Inc.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about March 24, 2000, which, to the extent appealed from as limited by the brief, granted the motion of third-party defendant Mackenzie Group, Inc. for summary judgment dismissing the third-party complaint against it, unanimously affirmed, without costs.

Summary judgment dismissing the third-party complaint as against Mackenzie was proper.   Third-party plaintiff New York City Housing Authority's claim for contractual indemnification from Mackenzie is not viable since it is clear as a matter of law that plaintiff's injury did not result directly or indirectly from Mackenzie's work or that of any of its subcontractors and, thus, that conditions of the subject indemnification clause's applicability were unfulfilled.   Plaintiff was employed by third-party defendant NYNEX, not Mackenzie, and the record establishes that NYNEX did not subcontract with Mackenzie but rather dealt directly with third-party plaintiff Housing Authority.   This being the case, the Housing Authority's reliance on Paragraph 18(d) of the parties' contract, requiring Mackenzie to procure insurance that would protect the Housing Authority “against liability claims for bodily injury ․ arising from the operations of the Contractor and his subcontractors” is similarly unavailing.