Guarnieri v. Essex Homes of WNY

24 A.D.3d 1266, 805 N.Y.S.2d 889

Opinion

Appeal from an order of the Supreme Court, Erie County (John F. O’Donnell, J.), entered November 12, 2004 in a personal injury action. The order denied the motion of defendant-third-party plaintiff seeking summary judgment in the third-party action.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Raymond Guarnieri (plaintiff) when he fell during the construction of a garage roof. Defendant and third-party plaintiff, the general contractor, commenced a third-party action against plaintiffs employer seeking contractual indemnification. Supreme Court properly denied the motion of defendant-third-party plaintiff seeking summary judgment in the third-party action. The indemnification provision of the agreement between defendant-third-party plaintiff and third-party defendant is triggered only in the event of a finding of an intentionally wrongful act or a negligent act or omission by third-party defendant or his agents, employees or contractors. Defendant and third-party plaintiff failed to establish such an act or omission and thus failed to establish its entitlement to judgment as a matter of law (see Hennard v Boyce, 6 AD3d 1132, 1134 [2004]; Niagara Frontier Transp. Auth. v City of Buffalo Sewer Auth., 1 AD3d 893, 895). Present—Green, J.P., Hurlbutt, Kehoe, Gorski and Martoche, JJ.