McAllister v. Construction Consultants L.I., Inc.

Appellate Division of the Supreme Court of New York

McAllister v. Construction Consultants L.I., Inc.

83 A.D.3d 1013, 921 N.Y.S.2d 556

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 26, 2011

StatusPublished

Cited by243 cases

This text of 83 A.D.3d 1013 (McAllister v. Construction Consultants L.I., Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McAllister v. Construction Consultants L.I., Inc., 83 A.D.3d 1013, 921 N.Y.S.2d 556 (N.Y. Ct. App. 2011).

Pincite

Opinion

In an action, inter alia, to recover damages for personal injuries, etc., and a related third-party action, the third-party defendant appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated September 24, 2009, which granted the motion of the defendant/third-party plaintiff for conditional summary judgment on its third-party cause of action for contractual indemnification.

Ordered that the order is reversed, on the law, with costs, and [1014]*1014the motion of the defendant/third-party plaintiff for conditional summary judgment on its third-party cause of action for contractual indemnification is denied as premature.

“[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor” (Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2009], citing General Obligations Law § 5-322.1; see Reynolds v County of Westchester, 270 AD2d 473 [2000]). Here, the Supreme Court erred in granting the motion of the defendant/third-party plaintiff which was for conditional summary judgment on its third-party cause of action for contractual indemnification, as there are issues of fact as to whose negligence, if any, caused the plaintiffs accident (see Erickson v Cross Ready Mix, Inc., 75 AD3d 519, 524 [2010]; George v Marshalls of MA, Inc., 61 AD3d 925, 930 [2009]; Chun v Ecco III Enters., 268 AD2d 454, 454-455 [2000]). Under these circumstances, it was premature to reach the issue of contractual indemnification (see Erickson v Cross Ready Mix, Inc., 75 AD3d at 524; George v Marshalls of MA, Inc., 61 AD3d at 930; Chun v Ecco III Enters., 268 AD2d at 454-455).

The third-party defendant’s remaining contention is not properly before this Court. Angiolillo, J.P., Florio, Lott and Austin, JJ., concur.

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In an action, inter alia, to recover damages for personal injuries, etc., and a related third-party action, the third-party defendant appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated September 24, 2009, which granted the motion of the defendant/third-party plaintiff for conditional summary judgment on its third-party cause of action for contractual indemnification.

Ordered that the order is reversed, on the law, with costs, and [1014]*1014the motion of the defendant/third-party plaintiff for conditional summary judgment on its third-party cause of action for contractual indemnification is denied as premature.

“[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor” (Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2009], citing General Obligations Law § 5-322.1; see Reynolds v County of Westchester, 270 AD2d 473 [2000]). Here, the Supreme Court erred in granting the motion of the defendant/third-party plaintiff which was for conditional summary judgment on its third-party cause of action for contractual indemnification, as there are issues of fact as to whose negligence, if any, caused the plaintiffs accident (see Erickson v Cross Ready Mix, Inc., 75 AD3d 519, 524 [2010]; George v Marshalls of MA, Inc., 61 AD3d 925, 930 [2009]; Chun v Ecco III Enters., 268 AD2d 454, 454-455 [2000]). Under these circumstances, it was premature to reach the issue of contractual indemnification (see Erickson v Cross Ready Mix, Inc., 75 AD3d at 524; George v Marshalls of MA, Inc., 61 AD3d at 930; Chun v Ecco III Enters., 268 AD2d at 454-455).

The third-party defendant’s remaining contention is not properly before this Court. Angiolillo, J.P., Florio, Lott and Austin, JJ., concur.

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Bluebook (online)

83 A.D.3d 1013, 921 N.Y.S.2d 556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcallister-v-construction-consultants-li-inc-nyappdiv-2011.

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