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Trala v. Afif

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


February 6, 2009

TIMOTHY TRALA, PLAINTIFF,
v.
HUSSEIN AFIF, DEFENDANT. HUSSEIN AFIF, THIRD-PARTY PLAINTIFF-RESPONDENT, ROBERT PAWLIK, THIRD-PARTY DEFENDANT-APPELLANT.

Appeal from an order of the Supreme Court, Erie County (Joseph G. Makowski, J.), entered February 8, 2008 in a personal injury action. The order denied the motion of third-party defendant for summary judgment dismissing the third-party complaint.

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.

PRESENT: SCUDDER, P.J., HURLBUTT, FAHEY, AND PINE, JJ.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the third-party complaint is dismissed.

Memorandum

Plaintiff commenced this action seeking damages for injuries he sustained when he slipped and fell on snow and ice on the driveway of property owned by defendant-third-party plaintiff (defendant). At the time of the accident, defendant had hired third-party defendant to remove snow from the driveway, but there was no written contract for those services. Defendant commenced the third-party action seeking contribution and indemnification on the grounds that third-party defendant was negligent and had breached the alleged snow removal contract. We conclude that Supreme Court erred in denying the motion of third-party defendant for summary judgment dismissing the third-party complaint inasmuch as he met his burden of establishing his entitlement to judgment as a matter of law, and defendant failed to raise a triable issue of fact in opposition to the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

To the extent that the third-party complaint, as amplified by the bill of particulars, asserts a claim for contribution, we conclude that third-party defendant met his burden of establishing that he did not owe defendant a duty of care independent of the alleged contract (see Zemotel v Jeld-Wen, Inc., 50 AD3d 1586, 1587). Contrary to the further contention of defendant, his retention of responsibility and control over the premises precludes his recovery on the common-law indemnification cause of action (see id.). Finally, with respect to the cause of action for contractual indemnification, we conclude that there is no basis upon which to impose liability against third-party defendant inasmuch as he established that at the time of the accident there was no snow removal contract containing an indemnification provision (see Zemotel, 50 AD3d at 1587; see also Miller v Mott's Inc., 5 AD3d 1019, 1020).

20090206

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