Duffy Alonso & Faley, New York, NY (Iryna S. Krauchanka,
Andrea M. Alonso, and Lina C. Rossillo of counsel), for
Marshall Dennehey Warner Coleman & Goggin, P.C., New
York, NY (Michael R. Manarel of counsel), for respondent.
C. DILLON, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, ANGELA
G. IANNACCI, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
defendant LIC Res, LLC, appeals, as limited by its notice of
appeal and brief, from so much of an order of the Supreme
Court, Kings County (Toussaint, J.), entered July 10, 2015,
as denied that branch of its motion which was for summary
judgment on its cross claim for contractual indemnification
against the defendant McGowan Builders, Inc.
that the order is reversed insofar as appealed from, on the
law, with costs, and that branch of the motion of the
defendant LIC Res, LLC, which was for summary judgment on its
cross claim for contractual indemnification against the
defendant McGowan Builders, Inc., is granted.
central issue on this appeal is whether the defendant McGowan
Builders, Inc. (hereinafter McGowan), the construction
manager at a construction site located on premises in Queens,
is obligated to indemnify the defendant LIC Res, LLC
(hereinafter LIC), the owner of those premises, pursuant to
an indemnification provision contained in a construction
management agreement, whereby McGowan agreed to indemnify the
owner of the premises from and against claims "arising
out of or resulting from the performance of the [w]ork,
provided that any such claim... is attributable (a)
to bodily injury... and (b) to any act or omissions of
[McGowan], anyone employed by it or anyone for whose acts it
may be liable to the extent attributable or arising out of
such act, omission or breach." The plaintiff was
employed by a subcontractor of Casino Development Group,
Inc., which was a subcontractor of McGowan, when he allegedly
sustained injuries to his eyes as an allegedly malfunctioning
hose pumping concrete at the construction site exploded. The
plaintiff commenced this action against LIC and McGowan,
among others, to recover damages for negligence and
violations of the Labor Law. Subsequently, LIC moved, inter
alia, for summary judgment on its cross claims for
contractual indemnification against McGowan, and the Supreme
Court denied that branch of LIC's motion. We reverse
insofar as appealed from.
proponent of a motion for summary judgment must tender
sufficient evidence to demonstrate as a matter of law the
absence of a material issue of fact (see Alvarez v
Prospect Hosp., 68 N.Y.2d 320, 324; Winegrad v New
York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Zuckerman
v City of New York, 49 N.Y.2d 557, 562). It is only
after that initial burden has been satisfied that the
opponent must produce sufficient evidence in admissible form
to establish the existence of a triable issue of fact
(see Alvarez v Prospect Hosp., 68 N.Y.2d at 324;
Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d at
party is entitled to full contractual indemnification
provided that the intention to indemnify can be clearly
implied from the language and purposes of the entire
agreement and the surrounding facts and circumstances"
(Cuellar v City of New York, 139 A.D.3d 996, 998
[internal quotation marks omitted]; see Hooper Assoc. v
AGS Computers, 74 N.Y.2d 487, 491-492; Dos Santos v
Power Auth. of State of N.Y., 85 A.D.3d 718, 722;
George v Marshalls of MA, Inc., 61 A.D.3d 925, 930).
In addition, "[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"
(Bellefleur v Newark Beth Israel Med. Ctr., 66
A.D.3d 807, 808 [internal quotation marks omitted]; see
Shea Bloomberg, L.P., 124 A.D.3d 621, 622).
demonstrated its prima facie entitlement to judgment as a
matter of law (see Alvarez v Prospect Hosp., 68
N.Y.2d at 324) by submitting, inter alia, the construction
management agreement, which included an express
indemnification clause in favor of LIC, as the owner (see
Ramales v Pecker Iron Workers of Westchester, Inc., 114
A.D.3d 920, 921; Guryev v Tomchinsky, 114 A.D.3d
723, 725; Farduchi v United Artists Theatre Circuit,
Inc., 23 A.D.3d 610, 611; Naranjo v Star Corrugated
Box Co., Inc., 11 A.D.3d 436, 437-438). The
plaintiff's alleged injuries resulted from the
performance of work contemplated by the construction
management agreement, and McGowan's responsibilities
under that agreement encompassed the plaintiff's work.
LIC also established, prima facie, that it was not negligent.
In opposition, McGowan failed to raise a triable issue of
fact (see Zuckerman v City of New York, 49 N.Y.2d at
562; Guryev v Tomchinsky, 114 A.D.3d at 726;
Reisman v Bay Shore Union Free School Dist., 74
A.D.3d 772, 773; Shea v Bloomberg, L.P., 124 A.D.3d
at 623; Naranjo v Star Corrugated Box Co., Inc., 11
A.D.3d at 438).
remaining contentions are either without merit or improperly
raised for the first time on appeal (see Shea v
Bloomberg, L.P., 124 A.D.3d at 623; Jamindar v
Uniondale Union Free School Dist., 90 A.D.3d 612, 617).
the Supreme Court should have granted that branch of
LIC's motion which was for summary judgment on its cross