Warnett v. A.J. Pegno Construction Corp.

1 A.D.3d 207, 767 N.Y.S.2d 107, 2003 N.Y. App. Div. LEXIS 11923

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 2003
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Stanley Green, J.), entered October 24, 2002, which granted the motion of defendant A.J. Pegno Construction for summary judgment on its claim for contractual indemnification from defendant Grace Industries, unanimously affirmed, with costs.

Plaintiff engineer was allegedly injured as he jumped out of the way of a backhoe operated by an employee of defendant subcontractor Grace Industries in connection with Grace’s installation of a water main at a construction site. The subcontract pursuant to which Grace’s work was performed provided that Grace would indemnify defendant contractor A.J. Pegno for liability arising from Grace’s work or operations, irrespective of its fault. Since there is no evidence that plaintiffs accident was attributable to negligence on A.J. Pegno’s part and it is clear that, to the extent the accident was caused by something other than plaintiffs own negligence, it arose out of Grace’s work or operations, A.J. Pegno was properly awarded summary judgment on its claim for contractual indemnification (see Brown v Two Exch. Plaza, 76 NY2d 172, 180-181 [1990]; Masciotta v Morse Diesel Intl., 303 AD2d 309 [2003]). Concur — Saxe, J.P, Sullivan, Rosenberger, Friedman and Gonzalez, JJ.