Tolpa v. One Astoria Square, LLC

In an action to recover damages for personal injuries, etc., the defendant/third-party defendant, FASA Contracting, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), entered July 25, 2013, as granted that branch of the cross motion of the defendants/third-party plaintiffs which was for summary judgment on the cause of action in the third-party complaint for contractual indemnification and, in effect, denied that branch *756 of its motion which was for summary judgment dismissing that cause of action. Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the cross motion of the defendants/third-party plaintiffs which was for summary judgment on the cause of action in the third-party complaint for contractual indemnification is denied, and that branch of the motion of the defendant/third-party defendant which was for summary judgment dismissing that cause of action is granted. Criterion Development Group, LLC (hereinafter Criterion), was the general contractor on a construction project at a building owned by One Astoria Square, LLC (hereinafter Astoria). FASA Contracting, Inc. (hereinafter FASA), was the masonry subcontractor on the project. The plaintiff, an employee of another subcontractor, allegedly sustained injuries at the site, and commenced this personal injury action against Criterion and Astoria (hereinafter together the Criterion defendants). The Criterion defendants commenced a third-party action against FASA, seeking, inter alia, contractual indemnification. FASA moved for summary judgment, inter alia, dismissing the cause of action for contractual indemnification set forth in the third-party complaint. The Criterion defendants cross-moved for summary judgment, inter alia, on that cause of action. The Supreme Court denied the motion and granted the cross motion. FASA appeals. A party’s right to contractual indemnification depends upon the specific language of the relevant contract (see Alfaro v 65 W. 13th Acquisition, LLC, 74 AD3d 1255 [2010]; Sherry v WalMart Stores K, L.P., 67 AD3d 992, 994 [2009]). Here, FASA’s indemnification obligation is limited to claims, damages, losses, and expenses caused in whole or in part by its negligent acts or omissions. FASA established its prima facie entitlement to judgment as a matter of law dismissing the contractual claim by demonstrating that the plaintiffs injuries were not caused in whole or in part by any negligence on its part, and that, accordingly, the indemnification clause was not triggered (see Mikelatos v Theofilaktidis, 105 AD3d 822, 823-824 [2013]; see also Perales v First Columbia 1200 NSR, LLC, 88 AD3d 1213, 1214 [2011]). FASA established that it did not create the dangerous condition that allegedly caused or contributed to the plaintiffs accident, that it completed its work in the subject area of the work site four to five months before the accident, that it cleared the area of debris, and that it never received any complaints regarding the condition of the area (see Simon v Granite Bldg. 2, LLC, 114 AD3d 749, 754 [2014]; Erickson v *757 Cross Ready Mix, Inc., 75 AD3d 519, 523 [2010]). In opposition, the Criterion defendants failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Simon v Granite Bldg. 2, LLC, 114 AD3d at 755). Accordingly, the Supreme Court should have granted that branch of FASA’s motion which was for summary judgment dismissing the contractual indemnification cause of action, and denied that branch of the Criterion defendants’ cross motion which was for summary judgment on that cause of action. Mastro, J.P., Austin, Maltese and Barros, JJ., concur. *759 Rivera, J.R, Hall, Austin and Cohen, JJ., concur. [Prior Case History: 2012 NY Slip Op 32781(U).]