Colyer v. K Mart Corp.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Third-party defendant Margret M. Diehl, doing business as Mirage Development (Mirage), appeals from those portions of an order that granted the motion of defendants and third-party plaintiffs, K Mart Corporation (K Mart) and Dominick P. Massa and Sons, Inc. (Massa), for summary judgment on their third-party claims against Mirage seeking common-law and contractual indemnification and that denied the motion of Mirage for summary judgment on its cross claim seeking common-law indemnification from third-party defendant Larry Colyer Masonry, Inc. (LCM). Supreme Court erred in granting that part of the motion of K Mart and Massa seeking summary judgment on their third-party claim for contractual indemnification. The indemnification provision is triggered 810 only in the event of a finding of negligence on the part of Mirage or its agents, employees or subcontractors. There is no basis in the record to find such negligence as a matter of law (see, Malecki v Wal-Mart Stores, 222 AD2d 1010, 1011; Baskewicz v Rochester Gas & Elec. Corp., 217 AD2d 922, 923; Hayes v Crane Hogan Structural Sys., 191 AD2d 978, 979; Stimson v Lapp Insulator Co., 186 AD2d 1052, 1053), and thus we modify the order by denying that part of the motion.