237 230 STREET REALTY CORP v. Trans Service Corporation, appellant, et al., defendants.

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

237 W. 230 STREET REALTY CORP., plaintiff, v. CASTLE OIL CORPORATION, et al., respondents, Trans Service Corporation, appellant, et al., defendants.

Decided: December 26, 2006

STEPHEN G. CRANE, J.P., DAVID S. RITTER, ROBERT J. LUNN and JOSEPH COVELLO, JJ. Saretsky Katz Dranoff & Glass, LLP, New York, N.Y. (Howard J. Newman and Elan Raday of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Gregory J. Dell of counsel), for respondents.

In an action to recover property damages resulting from the discharge of petroleum, the defendant Trans Service Corporation appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (O'Connell, J.), entered March 3, 2005, as granted that branch of the motion of the defendants Castle Oil Corporation and Old Republic Insurance Co. which was for summary judgment on their cross claim for indemnification against the defendant Trans Service Corporation.

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

As the Supreme Court correctly determined, the defendants Castle Oil Corporation (hereinafter Castle) and Old Republic Insurance Co. demonstrated their prima facie entitlement to summary judgment by establishing that the agreement between Castle and the defendant Trans Service Corporation (hereinafter Trans Service) unambiguously required the latter to indemnify Castle even if Castle was negligent and that, in any event, Castle was free of negligence in the incident giving rise to the plaintiff's claim in this action (see Margolin v. New York Life Ins. Co., 32 N.Y.2d 149, 153, 344 N.Y.S.2d 336, 297 N.E.2d 80;  Levine v. Shell Oil Co., 28 N.Y.2d 205, 211-212, 321 N.Y.S.2d 81, 269 N.E.2d 799;  New York Tel. Co. v. Gulf Oil Corp., 203 A.D.2d 26, 28, 609 N.Y.S.2d 244).   In opposition, Trans Service failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

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