Opinion
December 2, 1999
Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.).
James M. Lane, for plaintiff-appellant-respondent.
Scott E. Miller, for defendants-respondents-appellants.
Scott E. Miller, for third-party plaintiffs-appellants.
Roberta E. Tarshis, for third-party defendants-respondents-appellants.
ELLERIN, P.J., ROSENBERGER, NARDELLI, MAZZARELLI, FRIEDMAN, JJ.
Summary judgment in favor of prime contractor Linpro on its indemnity claim against subcontractor Monadnock should have been granted in view of the subcontract provision in which Monadnock agreed to indemnify Linpro for any loss arising from its acts or omissions or those of its employees, agents and lower-tier subcontractors, and in the absence of any evidence tending to show that negligence on Linpro's part contributed to plaintiff's injuries (see, Velez v. Tishman Foley Partners, 245 A.D.2d 155, 156-157; Walsh v. Morse Diesel, 143 A.D.2d 653, 655-656). The order is proper in all other respects. Dismissal of the action as against defendant Tishman Construction is unwarranted, there being an issue of fact as to whether the service of process that was made on it was such as to confer jurisdiction over plaintiff's intended defendant, Tishman Foley Partners, and, if so, whether Tishman Foley Partners was fairly apprised that it was the party plaintiff intended to sue (see, Gray v. Vought Co., 216 App. Div. 230; Connor v. Fish, 91 A.D.2d 744). The disclosure plaintiff seeks was properly denied, it appearing that the items in question have already been produced or are the subjects of a preliminary conference order directing that they be produced.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.