& Streiner, LLC, Manhasset (Veronica Renta Irwin of
counsel), for appellant.
Cartafalsa, Slattery, Turpin & Lenoff, New York (Carolyn
Comparato of counsel), for respondents/appellants.
Lilling Naparty LLP, Woodbury (Seth M. Weinberg of counsel),
for Montesano Bros., Inc., respondent.
Ryan & Downs, LLP, White Plains (Roland T. Koke of
counsel), for UGL Services Unicco Operations Co., respondent.
J.P., Acosta, Richter, Manzanet-Daniels, Kahn, JJ.
Supreme Court, New York County (Manuel J. Mendez, J.),
entered September 23, 2015, which, to the extent appealed and
cross-appealed from, granted the respective motions of
defendants/third-party plaintiffs/second third-party
plaintiffs (defendants), third-party defendant, and second
third-party defendant insofar as they sought summary judgment
dismissing the complaint, denied defendants' motion to
the extent it sought summary judgment on claims for common
law and contractual indemnification against third-party
defendant and second third-party defendant, granted second
third-part defendant's motion for summary judgment
dismissing the second third-party claims for common law and
contractual indemnification, and dismissed defendants'
third-party claims for common law and contractual
indemnification against third-party defendant, unanimously
modified, on the law, to vacate the dismissal of
defendants' third-party claim for contractual
indemnification against third-party defendant Montesano
Brothers, Inc. (Montesano), and otherwise affirmed, without
description of the alleged defect that caused her fall as an
"uneven spot" that "wasn't as level as the
other side" of a "little ridge" of concrete in
the ground, without more, establishes that the alleged defect
was trivial and nonactionable (see Hutchinson v Sheridan
Hill House Corp., 26 N.Y.3d 66');">26 N.Y.3d 66 ; Marcus v
Namdor, Inc., 46 A.D.3d 373, 374 [1st Dept 2007]).
Moreover, defendants established that they had no notice of
the alleged defect (see Coleman v New York City Hous.
Auth., 12 A.D.3d 281');">12 A.D.3d 281 [1st Dept 2004]).
third-party and second third-party claims for common-law
indemnification were properly dismissed, since the complaint
alleges that defendants were liable based on their own
wrongdoing in failing to maintain the premises (Great Am.
Ins. Cos. v Bearcat Fin. Servs., Inc., 90 A.D.3d 533');">90 A.D.3d 533
[1st Dept 2011], lv dismissed 18 N.Y.3d 951');">18 N.Y.3d 951 ).
second third-party claim for contractual indemnification was
also properly dismissed. The indemnification provision in UGL
Services Unicco Operations Co.'s (UGL) contract requires
UGL to indemnify defendants for property damage, bodily
injury, or death only arising out of or related to UGL's
negligence. Because UGL was not negligent, defendants are not
entitled to contractual indemnification from it.
indemnification provision in Montesano's contract was
more broad and required Montesano to indemnify defendants for
liability, damage, etc., "resulting from, arising out of
or occurring in connection with the execution of the Work,
" including attorneys' fees. Thus, although there
was no negligence here, to the extent defendants incurred
costs connected with Montesano's execution of its work,
which included constructing/resurfacing roads and sidewalks
on this shopping center renovation project, Montesano is
required to indemnify ...