Guarnieri v. Essex Homes of WNY

Appeal from an order of the Supreme Court, Erie County (John F. O’Donnell, J.), entered November 12, 2004 in a personal injury action. The order denied the motion of defendant-third-party plaintiff seeking summary judgment in the third-party action. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs. Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Raymond Guarnieri (plaintiff) when he fell during the construction of a garage roof. Defendant and third-party plaintiff, the general contractor, commenced a third-party action against plaintiffs employer seeking contractual indemnification. Supreme Court properly denied the motion of defendant-third-party plaintiff seeking summary judgment in the third-party action. The indemnification provision of the agreement between defendant-third-party plaintiff and third-party defendant is triggered only in the event of a finding of an intentionally wrongful act or a negligent act or omission by third-party defendant or his agents, employees or contractors. Defendant and third-party plaintiff failed to establish such 1267 an act or omission and thus failed to establish its entitlement to judgment as a matter of law (see Hennard v Boyce, 6 AD3d 1132, 1134 [2004]; Niagara Frontier Transp. Auth. v City of Buffalo Sewer Auth., 1 AD3d 893, 895). Present—Green, J.P., Hurlbutt, Kehoe, Gorski and Martoche, JJ.