Liberman v. Cayre Synergy 73rd LLC

140 A.D.3d 623, 33 N.Y.S.3d 702

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 2016
• Docket: 1585 602321/09 590067/11
• Status: Published

Opinion

Order, Supreme Court, New York County (Paul Wooten, J.), entered March 20, 2015, which, to the extent appealed from, denied third-party defendants Alcon Builders Group and Dar-ragh Collins’s (together, Alcon) and HHF Design Consulting Ltd. and Helmut Hans Fenster’s (together, HHF) motions for summary judgment dismissing the third-party complaint as against them, unanimously affirmed, without costs.

The motion court correctly rejected third-party defendants’ argument that the decision of this Court in a prior appeal in this case bars third-party plaintiff’s claims against them for indemnification (see 108 AD3d 426 [1st Dept 2013]). In that decision, we found that the work that Alcon, the general contractor on the condominium conversion, was performing in plaintiffs’ apartment pursuant to a direct agreement with plaintiffs could not have been the cause of any leaks. We did not rule on the claims at issue on this appeal: whether Alcon can be held liable for water damage caused by work it did as general contractor on behalf of the building sponsor (third-party plaintiff) and the merits of the sponsor’s indemnification claims as against HHF, a project engineering contractor.

The contractors’ argument, raised for the first time on appeal, that the sponsor’s indemnification claims must be dismissed as against them because the sponsor itself was negligent (see 108 AD3d 426) is without merit (see 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75 [1st Dept 1999]).

Concur — Sweeny, J.P., Acosta, Feinman, Kapnick and Webber, JJ.