O'Keefe v. Tishman Westside Construction

55 A.D.3d 368, 865 N.Y.S.2d 84

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 14, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered January 7, 2008, which, in this action seeking damages for personal injuries arising out of a work-related accident, upon granting the motion by third-party defendant for reargument and renewal, adhered to the original determination granting defendants/third-party plaintiffs’ motion for summary judgment against third-party defendant as to contractual indemnification, unanimously affirmed, without costs.

The motion court properly declined to vacate its prior determination in this matter. Third-party defendant not only supported defendants/third-party plaintiffs’ motion for summary judgment dismissing plaintiffs’ Labor Law claims, it moved for such relief itself. The court granted summary judgment dismissing plaintiffs’ common-law negligence and Labor Law § 200 causes of action and a portion of plaintiffs Labor Law § 241 (6) claim, but granted defendants’ motion for summary judgment on its claim for indemnification against third-party defendant. Third-party defendant can not now take the contrary position and argue that defendants were not entitled to summary judgment as to common-law negligence since defendants may have been actively negligent in connection with plaintiffs accident and that therefore defendants are not entitled to indemnification (see General Obligations Law § 5-322.1). Third-party defendant has not established the existence of any new facts that would warrant renewal. Concur—Mazzarelli, J.E, Friedman, Nardelli, Williams and Freedman, JJ.