NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 2, 2008
MANUEL MEJIA, PLAINTIFF,
ANDREW R. LEVENBAUM, DEFENDANT-RESPONDENT,
TAM RESTAURANTS, INC., ET AL., DEFENDANTS-APPELLANTS,
GROTTO D'ORO BAY CORP., ET AL., DEFENDANTS.
Order, Supreme Court, Bronx County (Alan Saks, J.), entered November 29, 2007, which, insofar as appealed from, in an action for personal injuries, granted defendant Andrew Levenbaum's motion to renew his prior motion for summary judgment on his cross claim against defendants Tam Restaurants, Inc. and Plum Third Street, Corp. for common-law indemnification, and, upon renewal, granted Levenbaum's motion to the extent of awarding him summary judgment on the cross claim as against Tam Restaurants, unanimously affirmed, with costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Saxe, Catterson, Renwick, Freedman, JJ.
This Court previously determined that Levenbaum bears no liability to plaintiff and that Plum Third, which is owned by Tam Restaurants, directed plaintiff's work at the time that he was injured (30 AD3d 262 ). Accordingly, since Levenbaum is free from active negligence and Plum Third had direct control over the work giving rise to the injury, summary judgment on the issue of Levenbaum's cross claim for common-law indemnification against Tam Restaurants was not premature (see Rodriguez v Metropolitan Life Ins. Co., 234 AD2d 156 ; see also Tighe v Hennegan Constr. Corp., 48 AD3d 201, 202 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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