KALINSKY v. (and a third-party action).

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

Dariusz KALINSKY, et al., plaintiffs, v. Jeffrey L. SQUARE, et al., defendants, Brookly Union Gas Company, respondent, Hallen Construction Company, Inc., appellant (and a third-party action).

Decided: June 26, 2007

ANITA R. FLORIO, J.P., STEVEN W. FISHER, EDWARD D. CARNI, and WILLIAM E. McCARTHY, JJ. Morris Duffy Alonso & Faley, New York, N.Y. (Pauline E. Glaser and Kevin G. Faley of counsel), for appellant. Cullen and Dykman, LLP, Brooklyn, N.Y. (Gregory M. Koch of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant Hallen Construction Company, Inc., appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated July 20, 2005, which, upon a jury verdict finding the defendant Jeffrey L. Square 65% at fault, the defendant Hallen Construction Company, Inc., 18% at fault, and the defendant Brooklyn Union Gas Company 17% at fault in the happening of the accident, granted the oral application of the defendant Brooklyn Union Gas Company for contractual indemnification against it.

ORDERED that on the court's own motion, the notice of appeal is deemed an application for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c] );  and it is further,

ORDERED that the order is reversed, on the law, with costs, and the oral application of the defendant Brooklyn Union Gas Company for contractual indemnification against the defendant Hallen Construction Company, Inc., is denied.

In light of the jury's findings that the defendant Brooklyn Union Gas Company (hereinafter BUG) was negligent and that such negligence was a substantial factor in causing the subject accident, BUG was barred, under General Obligations Law § 5-322.1, from seeking contractual indemnification against the defendant Hallen Construction Company, Inc., pursuant to a broadly-worded provision contemplating full indemnification (see Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 795, 658 N.Y.S.2d 903, 680 N.E.2d 1200;  Brooks v. Judlau Contr., Inc., 39 A.D.3d 447, 833 N.Y.S.2d 223;  Flores v. Jeffrey M. Brown Constr. Assoc., 28 A.D.3d 711, 712, 813 N.Y.S.2d 776;  Carriere v. Whiting Turner Contr., 299 A.D.2d 509, 511, 750 N.Y.S.2d 633).   Accordingly, the Supreme Court erred in granting BUG's oral application for contractual indemnification.

The parties' remaining contentions either are improperly raised for the first time on appeal or without merit.

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