HIRSCH v. Apple Maintenance Services, third-party defendant-appellant.

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

Nancy HIRSCH, plaintiff, v. K MART CORPORATION, defendant third-party plaintiff-respondent; Apple Maintenance Services, third-party defendant-appellant.

Decided: April 26, 1999

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, DANIEL W. JOY, MYRIAM J. ALTMAN and NANCY E. SMITH, JJ. Jacobson & Schwartz, Rockville Centre, N.Y. (Paul Goodovitch of counsel), for third-party defendant-appellant. Chesney & Murphy, LLP, Baldwin, N.Y. (Michelle S. Russo of counsel), for defendant third-party plaintiff-respondent.

In an action to recover damages for personal injuries, the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Schmidt, J.), dated December 3, 1997, as granted that branch of the motion of the defendant third-party plaintiff which was, in effect, for summary judgment against it on the third-party complaint for conditional contractual indemnification.

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

The plaintiff allegedly sustained injuries when she fell on a slippery floor in a store of the defendant K Mart Corporation (hereinafter K Mart).   She brought the instant action against K Mart, and K Mart then commenced a third-party action against the appellant, Apple Maintenance Services, which was under contract to buff and wax the floors in the store.   The court properly granted K Mart conditional contractual indemnification on its third-party complaint against the appellant, given the broad indemnification provision contained in the contract and the evidence that the accident was caused either by an improper application of wax or a failure to buff the wax (see, Haman v. Humble Oil & Ref. Co., 34 N.Y.2d 557, 354 N.Y.S.2d 940, 310 N.E.2d 538;  McCabe v. Queensboro Farm Prods., 22 N.Y.2d 204, 208, 292 N.Y.S.2d 400, 239 N.E.2d 340;  State of New York v. Syracuse Rigging Co., 249 A.D.2d 758, 759-760, 671 N.Y.S.2d 801;  Warner v. Historic Hudson Riv. Heritage Dev. Co., 235 A.D.2d 987, 652 N.Y.S.2d 884;  Conley v. Salt City Energy Venture, 234 A.D.2d 909, 910, 651 N.Y.S.2d 790).


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