Opinion
10427 Index 161510/14 595451/15 595664/15
11-21-2019
Mark FRANKLIN, Plaintiff, v. T–MOBILE USA, INC., et al., Defendants. T–Mobile USA, Inc., et al., Third–Party Plaintiffs–Appellants, v. Energy Design Service Systems, LLC, Third–Party Defendant–Respondent Energy Design Service Systems, LLC, Second Third–Party Plaintiff, v. Tarec, LLP, Second Third–Party Defendant.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Daniel Y. Sohnen of counsel), for appellants. Vigorito, Barker, Patterson, Nichols & Porter, LLP, Valhalla (Adonaid C. Medina of counsel), for respondent.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Daniel Y. Sohnen of counsel), for appellants.
Vigorito, Barker, Patterson, Nichols & Porter, LLP, Valhalla (Adonaid C. Medina of counsel), for respondent.
Friedman, J.P., Renwick, Oing, Singh, JJ.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered May 9, 2018, which, to the extent appealed from as limited by the briefs, denied defendants/third-party plaintiffs T–Mobile USA, Inc. and Dyckman Realty Associates L.P.'s motion for summary judgment on their claim for contractual indemnification against third-party defendant Energy Design Service Systems, LLC, unanimously affirmed, without costs.
On this record, there are issues of fact as to the negligence of defendants/third-party plaintiffs, who seek to enforce the subject indemnification provision ( Rodriguez v. Heritage Hills Socy., Ltd., 141 A.D.3d 482, 36 N.Y.S.3d 15 [1st Dept. 2016] [owner failed to make prima facie showing that it did not create or have notice of allegedly dangerous condition]; Cruz v. Kowal Indus., 267 A.D.2d 271, 701 N.Y.S.2d 96 [2d Dept. 1999] [owner's "fault could be predicated upon actual or constructive notice of a dangerous condition, such as a defective ladder present on the site"]; see also Powers v. Plaza Tower LLC, 173 A.D.3d 446, 446–447, 103 N.Y.S.3d 383 [1st Dept. 2019] [owner had a duty to keep the premises safe or to warn workers of the hazards]; Colozzo v. Natl. Ctr. Found., Inc., 30 A.D.3d 251, 817 N.Y.S.2d 256 [1st Dept. 2006] ). Accordingly, their motion for summary judgment as to liability on their contractual indemnification claim was properly denied.