Iurato v. City of New York

Appellate Division of the Supreme Court of New York

Iurato v. City of New York

18 A.D.3d 247, 793 N.Y.S.2d 915, 2005 N.Y. App. Div. LEXIS 5029

Appellate Division of the Supreme Court of the State of New York·Decided May 10, 2005·Published·Cited by 82 cases

Opinion

[248]*248Order, Supreme Court, Bronx County (Alexander W Hunter, Jr., J.), entered August 1, 2003, which, to the extent appealed from, denied the motion of third-party defendant Abax, Inc. for summary judgment dismissing all claims against it, unanimously affirmed, without costs.

Abax’s motion for summary judgment dismissing all claims against it was properly denied insofar as it has not been established which party placed the plastic underneath the ladder. If a jury determines that the general contractor’s culpability is vicarious only, it may be entitled to contractual indemnification from Abax (De La Rosa v Philip Morris Mgt. Corp., 303 AD2d 190, 193 [2003]). The motion is thus premature with respect to contractual indemnification, since there has been no determination as to the proximate cause of injury or who was liable for the accident (cf. id.).

We have considered Abax’s remaining arguments and find them without merit. Concur—Andrias, J.P., Friedman, Sullivan, Nardelli and Williams, JJ.

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[248]*248Order, Supreme Court, Bronx County (Alexander W Hunter, Jr., J.), entered August 1, 2003, which, to the extent appealed from, denied the motion of third-party defendant Abax, Inc. for summary judgment dismissing all claims against it, unanimously affirmed, without costs.

Abax’s motion for summary judgment dismissing all claims against it was properly denied insofar as it has not been established which party placed the plastic underneath the ladder. If a jury determines that the general contractor’s culpability is vicarious only, it may be entitled to contractual indemnification from Abax (De La Rosa v Philip Morris Mgt. Corp., 303 AD2d 190, 193 [2003]). The motion is thus premature with respect to contractual indemnification, since there has been no determination as to the proximate cause of injury or who was liable for the accident (cf. id.).

We have considered Abax’s remaining arguments and find them without merit. Concur—Andrias, J.P., Friedman, Sullivan, Nardelli and Williams, JJ.

Iurato v. City of New York, 18 A.D.3d 247, 793 N.Y.S.2d 915, 2005 N.Y. App. Div. LEXIS 5029 (N.Y. Ct. App. 2005).

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Opinion

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