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Hirsch v. Blake Housing

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


August 11, 2009

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.

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.

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.

PETER B. SKELOS, J.P., FRED T. SANTUCCI, RUTH C. BALKIN and JOHN M. LEVENTHAL, JJ.

(Index No. 5208/04)

DECISION & ORDER

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 AD3d 660, 662; 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 AD3d 706, 708-709; see Lane v Fratello Constr. Co., 52 AD3d 575, 576; Nasuro v PI Assocs. LLC, 49 AD3d 829, 830).

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 AD3d at 708). 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 AD2d 738), an issue which cannot be determined on this record (see id.; Vyadro v City of New York, 2 AD3d 519, 521). 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 AD2d at 739; Vyadro v City of New York, 2 AD3d at 521; Keating v Nanuet Bd. of Educ., 40 AD3d at 708).

Empire's remaining contentions are without merit.

SKELOS, J.P., SANTUCCI, BALKIN and LEVENTHAL, JJ., concur.

20090811

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