Schwalm v. County of Monroe

158 A.D.2d 994, 550 N.Y.S.2d 970, 1990 N.Y. App. Div. LEXIS 1548

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1990
• Status: Published

Opinion

Supreme Court also erred in denying the cross motion for summary judgment by the City of Rochester (City) against the County of Monroe (County) and the Rochester Pure Waters District (District) for contractual indemnification. A 1971 lease agreement provides for such indemnification. The City’s liability to plaintiffs in the primary action is based solely on its status as owner of the property, and the City had no control or supervision of the worksite (see, Kosiorek v Bethlehem Steel Corp., 145 AD2d 935, 936; Conway v New York State Teachers’ Retirement Sys., 141 AD2d 957, 959-960).

Plaintiff was working as an employee of John P. Bell & Sons, Inc. (Bell) at the time of the accident. Since Bell is ultimately and vicariously responsible for plaintiff’s injuries, it was error for the court to deny the cross motions of the County and the District for common-law indemnification (see, McDermott v City of New York, 50 NY2d 211). The cross motions were not premature since it is permissible for a party to obtain a conditional judgment of indemnification without awaiting actual payment (see, Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 470, n 2; McCabe v Queensboro Farm Prods., 22 NY2d 204, 208). (Appeals from order of Supreme Court, Monroe County, Willis, J. — partial summary judgment.) Present — Callahan, J. P., Denman, Green, Balio and Lawton, JJ.