Cenven, Inc. v. Bethlehem Steel Corp.

51 A.D.2d 955, 381 N.Y.S.2d 503, 1976 N.Y. App. Div. LEXIS 11664

Opinion

Judgment, Supreme Court, New York County, entered April 16, 1975 insofar as it dismissed the third-party complaint of third-party plaintiff Bethlehem Steel Corporation against third-party defendant Youngstown Cartage Company, reversed, on the law and the facts, and judgment directed in favor of said third-party plaintiff against third-party defendant. Appellant shall recover of respondent $60 costs and disbursements of this appeal. The operation of raising the steel beams from third-party defendant’s truck to the place of storage on the 28th floor of the building under construction constitutes "loading and unloading” as defined in Wagman v American Fid. & Cas. Co., 304 NY 490; and Lamberti v Anaco Equip. Corp., 16 AD2d 121), and is thus covered by the indemnity agreement. The indemnity agreement was not invalid under section 5-323 of the General Obligations Law. (Fuller Co. v Fischbach & Moore, 7 AD2d 33, 34.) Section 5-322.1 of the General Obligations Law effective in August, 1975 is inapplicable. Concur—Murphy, J. P., Lupiano, Burns and Silverman, JJ.; Nunez, J., would affirm for the reasons stated by Whitman, J. Settle order on notice.