Alesius v. Good Samaritan Hospital Medical & Dialysis Center

Appellate Division of the Supreme Court of New York

Alesius v. Good Samaritan Hospital Medical & Dialysis Center

23 A.D.3d 508, 806 N.Y.S.2d 635

Appellate Division of the Supreme Court of the State of New York·Decided November 21, 2005·Published·Cited by 11 cases

Opinion

In an action to recover damages for personal injuries, etc., the defendants third-party plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Peck, J.), dated July 2, 2004, as granted the cross motion of the third-party defendant for summary judgment dismissing the third-party cause of action for contractual indemnification.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is denied, and the third-party cause of action for contractual indemnification is reinstated.

Pursuant to General Obligations Law § 5-322.1, a clause in a construction contract which purports to indemnify a party for its own negligence is void (see Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786 [1997]; Caruso v Inhilco, Inc., 2 AD3d 662 [2003]; Carriere v Whiting Turner Contr., 299 AD2d 509 [2002]), but the clause may nevertheless be enforced where the party to be indemnified is found to be free of any negligence (see Brown v Two Exch. Plaza Partners, 76 NY2d 172 [1990]; Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., supra). The third-party defendant failed to establish its entitlement to judgment as a matter of law, and its cross motion for summary judgment dismissing the third-party cause of action for contractual indemnification should have been denied (see Brennan v R.C. Dolner, Inc., 14 AD3d 639 [2005]; Marano v Commander Elec., Inc., 12 AD3d 571 [2004]; Kozerski v Deer Run Homeowners Assn., 217 AD2d 841 [1995]; see also Parelli v Talbot Store, 308 AD2d 569 [2003]). There are triable issues of fact as to whether the defendant third-party-plaintiff was negligent and, if so, whether its negligence was the proximate cause of the plaintiffs alleged injuries, based upon the conflict[509]*509ing deposition testimony regarding the condition of the floor of the job site at the time of the accident. Schmidt, J.P., S. Miller, Santucci and Spolzino, JJ., concur.

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In an action to recover damages for personal injuries, etc., the defendants third-party plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Peck, J.), dated July 2, 2004, as granted the cross motion of the third-party defendant for summary judgment dismissing the third-party cause of action for contractual indemnification.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is denied, and the third-party cause of action for contractual indemnification is reinstated.

Pursuant to General Obligations Law § 5-322.1, a clause in a construction contract which purports to indemnify a party for its own negligence is void (see Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786 [1997]; Caruso v Inhilco, Inc., 2 AD3d 662 [2003]; Carriere v Whiting Turner Contr., 299 AD2d 509 [2002]), but the clause may nevertheless be enforced where the party to be indemnified is found to be free of any negligence (see Brown v Two Exch. Plaza Partners, 76 NY2d 172 [1990]; Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., supra). The third-party defendant failed to establish its entitlement to judgment as a matter of law, and its cross motion for summary judgment dismissing the third-party cause of action for contractual indemnification should have been denied (see Brennan v R.C. Dolner, Inc., 14 AD3d 639 [2005]; Marano v Commander Elec., Inc., 12 AD3d 571 [2004]; Kozerski v Deer Run Homeowners Assn., 217 AD2d 841 [1995]; see also Parelli v Talbot Store, 308 AD2d 569 [2003]). There are triable issues of fact as to whether the defendant third-party-plaintiff was negligent and, if so, whether its negligence was the proximate cause of the plaintiffs alleged injuries, based upon the conflict[509]*509ing deposition testimony regarding the condition of the floor of the job site at the time of the accident. Schmidt, J.P., S. Miller, Santucci and Spolzino, JJ., concur.

Alesius v. Good Samaritan Hospital Medical & Dialysis Center, 23 A.D.3d 508, 806 N.Y.S.2d 635 (N.Y. Ct. App. 2005).

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23 A.D.3d 508 (Alesius v. Good Samaritan Hospital Medical & Dialysis Center) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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