Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered November 27, 2009, which denied defendant Silverstein Properties, Inc.'s motion for summary judgment dismissing the complaint as against it or, in the alternative, for summary judgment on its cross claim for contractual indemnification against defendant Otis Elevator Company, unanimously affirmed, without 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.
Saxe, J.P., Friedman, Nardelli, Freedman, Abdus-Salaam, JJ.
The motion court correctly denied Silverstein's motion for summary judgment on the claims against it, since the conflict between the injured plaintiff's former co-worker's testimony, that she witnessed plaintiff's fall from the elevator and that she had previously notified Silverstein of a defect in that elevator car, and Silverstein's building manager's testimony, that he did not recall receiving complaints, raises an issue of fact whether Silverstein had notice of the alleged defective condition and failed to notify Otis (see Rogers v Dorchester Assoc., 32 NY2d 553, 562 ).
The court also correctly denied Silverstein summary judgment on its contractual indemnification claim, since the contract between Silverstein and Otis provides that Otis will indemnify Silverstein against certain liability to the extent that liability arises out of Otis's negligence in its performance of the contract, and there has been no finding that Otis was negligent (see e.g. Zeigler-Bonds v Structure Tone, 245 AD2d 80 ; Malecki v Wal-Mart Stores, 222 AD2d 1010, 1011 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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