HIRSCH v. Bass Plumbing & Heating Corp., third-party defendant-respondent.

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

Patrick J. HIRSCH, plaintiff, v. BLAKE HOUSING, LLC, et al., defendants, Empire Developers Corp., defendant third-party plaintiff-appellant; Absolute Electrical Contracting, Inc., et al., third-party defendants; Bass Plumbing & Heating Corp., third-party defendant-respondent.

Decided: August 11, 2009

PETER B. SKELOS, J.P., FRED T. SANTUCCI, RUTH C. BALKIN, and JOHN M. LEVENTHAL, JJ. Mound Cotton Wollan & Greengrass, New York, N.Y. (Michael Rubin of counsel), for defendant third-party plaintiff-appellant. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Michael T. Reagan of counsel), for third-party defendant-respondent.

In an action to recover damages for personal injuries, the defendant third-party plaintiff Empire Developers Corp. appeals from so much of an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated July 24, 2008, as, in effect, denied that branch of its motion which was for summary judgment on its third-party cause of action for contractual indemnification insofar as asserted against the third-party defendant Bass Plumbing & Heating Corp.

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

The plaintiff, an employee of the third-party defendant Bass Plumbing & Heating Corp. (hereinafter Bass), was injured while working at a construction site.   Bass was a subcontractor of the defendant third-party plaintiff Empire Developers Corp. (hereinafter Empire), the general contractor.   The contract between Empire and Bass required Bass to indemnify Empire “from and against claims, damages, losses and expenses ․ arising out of or resulting from performance of [Bass]'s Work under this [contract] ․ but only to the extent caused by the negligent acts or omissions of [Bass].” Empire moved, inter alia, for summary judgment on its third-party cause of action for contractual indemnification insofar as asserted against Bass.   The Supreme Court, in effect, denied that branch of Empire's motion.

 “[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor” (Cava Constr. Co., Inc. v. Gealtec Remodeling Corp., 58 A.D.3d 660, 662, 871 N.Y.S.2d 654;  see General Obligations Law § 5-322.1).  “Where, [as here], a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition” (Keating v. Nanuet Bd. of Educ., 40 A.D.3d 706, 708-709, 835 N.Y.S.2d 705;  see Lane v. Fratello Constr. Co., 52 A.D.3d 575, 576, 860 N.Y.S.2d 177;  Nasuro v. PI Assocs. LLC, 49 A.D.3d 829, 830, 858 N.Y.S.2d 175).

 Empire failed to establish, prima facie, that it lacked control over the work site or notice of the allegedly dangerous condition, thus precluding a finding, as a matter of law, that it was not negligent (see Keating v. Nanuet Bd. of Educ., 40 A.D.3d at 708, 835 N.Y.S.2d 705).   Moreover, Empire was required to establish that Bass was negligent as a matter of law in order to demonstrate its entitlement to summary judgment (see Rodriguez v. Savoy Boro Park Assoc. Ltd. Partnership, 304 A.D.2d 738, 759 N.Y.S.2d 107), an issue which cannot be determined on this record (see id.;  Vyadro v. City of New York, 2 A.D.3d 519, 521, 767 N.Y.S.2d 871).   Since the alleged negligence of Empire and Bass, if any, cannot be determined as a matter of law, that branch of Empire's motion which was for summary judgment on its third-party cause of action for contractual indemnification insofar as asserted against Bass was properly, in effect, denied (see Rodriguez v. Savoy Boro Park Assoc. Ltd. Partnership, 304 A.D.2d at 739, 759 N.Y.S.2d 107;  Vyadro v. City of New York, 2 A.D.3d at 521, 767 N.Y.S.2d 871;  Keating v. Nanuet Bd. of Educ., 40 A.D.3d at 708, 835 N.Y.S.2d 705).

Empire's remaining contentions are without merit.

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