LEIBEL v. (and another action).

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

Diane F. LEIBEL, plaintiff, v. FLYNN HILL ELEVATOR COMPANY, defendant third-party plaintiff-respondent; County of Suffolk, third-party defendant-appellant. (and another action).

Decided: January 31, 2006

GLORIA GOLDSTEIN, J.P., WILLIAM F. MASTRO, ROBERT A. SPOLZINO, and ROBERT J. LUNN, JJ. Christine Malafi, County Attorney, Hauppauge, N.Y. (Anthony P. Moncayo of counsel), for third-party defendant-appellant. DLA Piper RudnickGray Cary, US, LLP, New York, N.Y. (Christopher G. Campbell 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, Suffolk County (Pitts, J.), dated September 23, 2004, as, upon reargument, granted the motion of the defendant third-party plaintiff for leave to amend its third-party complaint.

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

Contrary to the contentions of the third-party defendant, County of Suffolk, the Supreme Court providently exercised its discretion in granting, upon reargument, that branch of the motion of the defendant third-party plaintiff (hereinafter the respondent) which was for leave to amend its third-party complaint (see CPLR 3025[b];  Nunez v. Mousouras, 21 A.D.3d 355, 800 N.Y.S.2d 185;  Hilltop Nyack Corp. v. TRMI Holdings, 275 A.D.2d 440, 712 N.Y.S.2d 888).   The County failed to demonstrate that it would be prejudiced by the respondent's delay, and the proposed amendment was neither palpably insufficient nor totally devoid of merit (see CPLR 3025[b];  Nunez v. Mousouras, supra;  Hilltop Nyack Corp. v. TRMI Holdings, supra;  cf. Comsewogue Union Free School Dist. v. Allied-Trent Roofing Sys., Inc., 15 A.D.3d 523, 525, 790 N.Y.S.2d 220).

An indemnification provision in a contract in connection with the construction, repair, or maintenance of a building and appurtenances and appliances thereof that seeks to indemnify a party for its own negligence is void as against public policy and unenforceable (see General Obligations Law § 5-322.1;  see also 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;  Leibel v. Flynn Hill El. Co., 16 A.D.3d 464, 465, 791 N.Y.S.2d 638;  Carriere v. Whiting Turner Contr., 299 A.D.2d 509, 511, 750 N.Y.S.2d 633).   However, insurance procurement provisions are valid and enforceable and are not proscribed by General Obligations Law § 5-322.1 (see Kinney v. Lisk Co., 76 N.Y.2d 215, 218-219, 557 N.Y.S.2d 283, 556 N.E.2d 1090;  Cappellino v. Atco Mech., 273 A.D.2d 265, 708 N.Y.S.2d 704;  Reynolds v. County of Westchester, 270 A.D.2d 473, 474, 704 N.Y.S.2d 651).   The County's contention to the contrary is without merit.

The County's remaining contentions are without merit.

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