KOWALEWSKI v. NORTH GENERAL HOSPITAL

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

Alina KOWALEWSKI, et al., Plaintiffs, v. NORTH GENERAL HOSPITAL, et al., Defendants,

Big Apple Wrecking and Construction Corporation, Defendant-Respondent. North General Hospital, Third-Party Plaintiff, v. Safeway Environmental Corporation, Third-Party Defendant-Appellant.

Crow Construction Co./Becom Real, Inc., Second Third-Party Plaintiff, v. Safeway Environmental Corporation, Second Third-Party Defendant-Appellant.

Decided: November 23, 1999

ELLERIN, P.J., ROSENBERGER, TOM, ANDRIAS and BUCKLEY, JJ. Thomas James Hall,Daniel O. Dietchweiler, for Defendant-Respondent. Gary J. Dwyer, for Third-Party Defendant-Appellant and Second Third-Party Defendant-Appellant.

Order, Supreme Court, New York County (Emily Goodman, J.), entered August 21, 1998, which, to the extent appealed from, denied the cross motion of defendant Safeway Environmental Corporation for summary judgment dismissing defendant Big Apple Wrecking and Construction Company's cross claim against it for contractual indemnification and granted Big Apple's cross motion for partial summary judgment on its cross claim against Safeway for contractual indemnification to the extent of finding that Safeway, its agents or subcontractors are liable for plaintiff's injuries, unanimously affirmed, without costs.

The indemnification clause in dispute provides indemnity only to the extent of loss caused by the negligent acts of the subcontractor and/or its agents and is, therefore, enforceable under General Obligations Law § 5-322.1 [1] (see, Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 795, n.5, 658 N.Y.S.2d 903, 680 N.E.2d 1200).

Having failed to file a notice of appeal, Big Apple's argument that the record demonstrates it was not negligent is not properly before this Court.   Accordingly, the court's conditional grant of summary judgment pending a finding as to the extent of Safeway's responsibility for the loss was proper.

We have considered Safeway's remaining arguments and find them to be unavailing.

MEMORANDUM DECISION.