Syracuse University v. Games 2002, LLC

Appeal from an order of the Supreme Court, Onondaga County (James E Murphy, J.), entered September 5, 2008 in an action for contractual and common-law indemnification. The order, insofar as appealed from, denied that part of the motion of plaintiff for summary judgment on the first cause of action, for contractual indemnification, and granted the cross motion of defendant to the extent that it sought leave to amend its answer. It is hereby ordered that the order so appealed from is affirmed without costs. Memorandum: Supreme Court properly denied plaintiffs motion for summary judgment on the complaint, which asserts causes of action for contractual and common-law indemnification and seeks judgment in the amount of $750,000 plus interest and costs, based on plaintiffs settlement of an underlying Labor Law and common-law negligence action commenced against, inter alia, the parties herein (Aton v Syracuse Univ., 24 AD3d 1315 [2005]). The plaintiff in the underlying action was an employee who fell from a tower while installing a “lighting/ roof grid system” in the Carrier Dome for the 2002 Empire State Games. Plaintiff and defendant had entered into a contract pursuant to which plaintiff agreed to allow defendant to use the Carrier Dome for the opening ceremonies of the games, and the contract provided that defendant would indemnify plaintiff for any liability arising out of defendant’s use of the Carrier Dome. We conclude on the record before us that plaintiff failed to establish its entitlement to either common-law or contractual indemnification. Plaintiff failed to establish as a matter of law that it was not itself negligent and that any liability on its part for the injuries sustained by the plaintiff in the underlying action, who was an employee of a subcontractor of defendant, was vicarious only, inasmuch as plaintiff failed to establish that it exercised no supervision or control over the work of the injured employee (see e.g. State of New York v Santaro Indus., Inc., 48 AD3d 1101, 1102-1103 [2008]; Baillie Lbr. Co., L.P. v A.L. Burke, Inc., 43 AD3d 1290 [2007]; Brickel v Buffalo Mun. Hous. Auth., 280 AD2d 985 [2001]). Even assuming, arguendo, that plaintiff met its initial burden on the motion, we would conclude that plaintiffs mo [1532] tion is premature because discovery has not been completed, including depositions concerning the respective roles, if any, of the parties involved in the accident (see CPLR 3212 [f]; see generally JCS Controls, Inc. v Stacey, 57 AD3d 1372, 1374 [2008]). We further conclude that the court properly granted the cross motion of defendant to the extent that it sought leave to amend its answer (see generally CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]). Here, the proposed amendments are not patently lacking in merit (see generally Carro v Lyons Falls Pulp & Paper, Inc., 56 AD3d 1276, 1277 [2008]), and there has been no showing of prejudice to plaintiff (see generally Torvec, Inc. v CXO on the GO of Del., LLC, 38 AD3d 1175, 1176-1177 [2007]). All concur except Carni, J., who dissents and votes to reverse the order insofar as appealed from in accordance with the following memorandum.