GEORGE v. American Industrial Cleaning Co., Inc., appellant.

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

Sheila GEORGE, et al., plaintiffs, v. MARSHALLS OF MA, INC., et al., defendants, Sullivan Service Co., Inc., respondent, American Industrial Cleaning Co., Inc., appellant.

Decided: April 28, 2009

WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, JOSEPH COVELLO, and ARIEL E. BELEN, JJ. Hammill, O'Brien, Croutier, Dempsey & Pender, P.C., Syosset, N.Y. (Anton Piotroski of counsel), for appellant. Fiedelman & McGaw, Jericho, N.Y. (James K. O'Sullivan of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the defendant American Industrial Cleaning Co., Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Lally, J.), dated November 5, 2007, as granted that branch of the motion of the defendant Sullivan Service Co., Inc., which was for conditional summary judgment on its cross claim for contractual indemnification against the defendant American Industrial Cleaning Co., Inc.

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

 A court may render a conditional judgment on the issue of indemnity pending determination of the primary action in order that the indemnitee may obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed provided that there are no issues of fact concerning the indemnitee's active negligence (see Gil v. Manufacturers Hanover Trust Co., 39 A.D.3d 703, 705, 833 N.Y.S.2d 634;  State of New York v. Travelers Prop. Cas. Ins. Co., 280 A.D.2d 756, 757-758, 720 N.Y.S.2d 589).

 Here, there are no issues of fact concerning the negligence of Sullivan Service Co., Inc. (hereinafter Sullivan) (see George v. Marshalls of MA, Inc., 61 A.D.3d 925, --- N.Y.S.2d ---- [Appellate Division Docket No. 2007-07301, decided herewith] ).   Pursuant to Sullivan's contract with Marshalls of MA, Inc., and TJX Companies, Inc. (hereinafter together Marshalls), Sullivan may be obligated to indemnify Marshalls for a “negligent act” of Sullivan's subcontractor, American Industrial Cleaning Co., Inc. (hereinafter American), which caused the accident involving the plaintiff Shelia George.   If it is shown that an act or omission of American caused Sheila George's accident, then, pursuant to American's contract with Sullivan, American is obligated to indemnify Sullivan.   Accordingly, the Supreme Court correctly granted Sullivan conditional summary judgment on its cross claim against American for contractual indemnification.

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