REYNOLDS v. Plato Construction Corp., third-party defendant-appellant.

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

Richard REYNOLDS, et al., plaintiffs, v. COUNTY OF WESTCHESTER, respondent, Nelson Industrial Services, defendant third-party plaintiff; Plato Construction Corp., third-party defendant-appellant.

Decided: March 27, 2000

DAVID S. RITTER, J.P., SONDRA MILLER, LEO F. McGINITY and SANDRA J. FEUERSTEIN, JJ. Milber Makris Plousadis & Seiden, LLP, Garden City, N.Y. (Dean L. Milber of counsel), for third-party defendant-appellant. Alan D. Scheinkman, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz and Mary Lynn Nicolas of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the third-party defendant appeals from an order of the Supreme Court, Westchester County (Barone, J.), entered April 8, 1999, which granted the motion of the defendant County of Westchester for summary judgment on the second cross claim against it for contractual indemnification, and on the third and fourth cross claims against it alleging breach of contract.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was for summary judgment on the second cross claim for contractual indemnification and substituting therefor a provision denying that branch of the motion;  as so modified, the order is affirmed, without costs or disbursements.

 Pursuant to General Obligations Law § 5-322.1, any construction contract purporting to indemnify a party for its own negligence is void and unenforceable, although contracts requiring parties to procure insurance are not similarly void (see, Kinney v. G.W. Lisk Co., 76 N.Y.2d 215, 557 N.Y.S.2d 283, 556 N.E.2d 1090).   Consequently, a party to a contract who is a beneficiary of an indemnification provision must prove itself to be free of negligence;  to any extent that the negligence of such a party contributed to the accident, it cannot be indemnified therefor (see, Kennelty v. Darlind Constr., 260 A.D.2d 443, 688 N.Y.S.2d 584;  Stein v. Yonkers Contr., 244 A.D.2d 476, 664 N.Y.S.2d 328;  Dawson v. Pavarini Constr. Co., 228 A.D.2d 466, 644 N.Y.S.2d 285).   In the instant case, the defendant County of Westchester failed to establish its freedom from fault so as to entitle it to summary judgment on its cross claim for contractual indemnification (see, American Ref-Fuel Co. v. Resource Recycling, 248 A.D.2d 420, 423, 671 N.Y.S.2d 93;  McGill v. Polytechnic Univ., 235 A.D.2d 400, 651 N.Y.S.2d 992;  Dawson v. Pavarini Constr. Co., supra;  cf., Kennelty v. Darlind Constr., supra).   Thus, the Supreme Court erred in granting that branch of the County's motion which was for summary judgment on that cross claim.

The appellant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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