Inasmuch as there are issues of fact as to whether any negligence on the part of defendant Lawrence Labs caused the icy condition of the parking lot. the request by defendant Lawrence Labs for summary judgment dismissing the cross claims against it for common-law indemnification and contribution is denied as premature (see Powell vCVS Jerusalem N. Bellmore, LLC. 71 AD3d 655. 896 NYS2d 139 [2d Dept 2010J: Aragundi v Tishman Realty & Constr. Co., Inc., 68 AD 3d 1027. 891 NYS2J462: Watters v R.D. Branch Assocs., LP. 30 AD3d 408. 816 NYS2d 193 [2d Dept 2006]). The alternate request of defendant Lawrence Labs for summary judgment on its own cross claims for common-law indemnification is denied as premature for the same reason (see George v Marshalls of MA, Inc.,61 AD3d 925. 878 NYS2d 143 [2d Dept 2009]).
Thus, the indemnitor is either totally responsible or not, see,McDermott v City of New York, supra at 220. Neither 372 Jericho nor M M established their prima facie entitlement to summary judgment on their cross claims against each other sounding in common law contribution and indemnification as issues of fact exist as to whether the defendants were free from negligence and whether one or both of them are solely responsible for the accident, see, Kwang Ho Kim v D W Shin Realty Corp., 47 AD3d 616 [2d Dept 2008]; Baillie Lumber Co., L.P., v Al L. Burke, Inc., 43 AD3d 1290 [4th Dept 2007];Watters v R. D. Branch Assocs., LP, 30 AD3d 408 [2d Dept 2006]. Additionally, neither 372 Jericho nor M M established their prima facie entitlement to summary judgment on 372 Jericho's fourth cross claim for breach of contract for failure to procure insurance as triable issues of fact exist concerning whether M M procured the contractually-mandated insurance, see, Natarus v Corp. Prop. Investors, Inc., 13 AD3d 500 [2d Dept 2004]; Haidari v 437 Madison Ave. Fee Assocs., 293 AD2d 360 [1st Dept 2002]; cf., Watters v R. P. Branch Assocs., LP, 30 AD3d 408, supra.
Because this Court has granted summary judgment in favor of Movants on Plaintiff's claims for negligence, Movants' claim for contractual indemnification is not premature. See Watters v. R.D. Branch Assocs., LP, 816 N.Y.S.2d 193, 194 (App.Div. 2006); see also Pollack, 457 F. Supp. 2d at 454. VI. Claims for Lost Wages
of fact as to whether SCS's alleged negligence created or exacerbated the hazard which was a proximate cause of the accident ( see Gushin v. Whispering Hills Condominium I, 96 A.D.3d 721, 722, 946 N.Y.S.2d 202;Elsey v. Clark Trading Corp., 57 A.D.3d 1330, 1332, 871 N.Y.S.2d 439). Accordingly, the Supreme Court properly denied that branch of SCS's motion which was for summary judgment dismissing the amended complaint insofar as asserted against it. The Supreme Court properly denied those branches of Allright's motion which were for summary judgment dismissing Metro-North's claim for contractual indemnification against it and for summary judgment on its claim for common-law and contractual indemnification against SCS, because triable issues of fact exist as to the alleged negligence of Allright, Metro-North, and SCS in creating and failing to clear the mound of snow which caused the injured plaintiff's fall ( see Mathey v. Metropolitan Transp. Auth., 95 A.D.3d at 845, 943 N.Y.S.2d 578;Watters v. R.D. Branch Assoc., LP, 30 A.D.3d 408, 816 N.Y.S.2d 193;Boskey v. Gazza Props., 248 A.D.2d 344, 346, 669 N.Y.S.2d 624). In light of the existence of triable issues of fact as to the negligence of Allright, Metro-North, and SCS, the Supreme Court also properly denied those branches of Metro-North's motion which were for summary judgment on its claims for common-law and contractual indemnification against Allright and SCS, and that branch of SCS's motion which was for summary judgment dismissing Allright's claim for common-law and contractual indemnification against it.
Here, the subject lease provided that GameStop, as tenant, was required to “defend and save Landlord harmless and indemnified from all injury, loss, claims or damage (including attorney's fees and disbursements) to any Person or property, arising from, related to, or in connection with the use or occupancy of the Demised Premises ... excluding, however, any fault or negligence by Landlord, its agents, servants, and contractors.” As the Sunrise Mall defendants failed to establish that the plaintiff's injury did not arise from their own negligence, they failed to establish their prima facie entitlement to judgment as a matter of law with regard to their cross claim for contractual indemnification ( see George v. Marshalls of MA, Inc., 61 A.D.3d 925, 929, 878 N.Y.S.2d 143;Watters v. R.D. Branch Assoc., LP, 30 A.D.3d 408, 409–410, 816 N.Y.S.2d 193). Similarly, they failed to establish their prima facie entitlement to judgment as a matter of law on their cross claim for common-law indemnification, because they failed to satisfy their prima facie burden of establishing that they were not negligent ( see Robles v. Bruhns, 99 A.D.3d 980, 982, 953 N.Y.S.2d 143;George v. Marshalls of MA, Inc., 61 A.D.3d at 930, 878 N.Y.S.2d 143). Finally, since the GameStop defendants are not insurers, their duty to defend was no broader than their duty to indemnify ( see Bellefleur v. Newark Beth Israel Med. Ctr., 66 A.D.3d 807, 809, 888 N.Y.S.2d 81;George v. Marshalls of MA, Inc., 61 A.D.3d at 930, 878 N.Y.S.2d 143;Bryde v. CVS Pharmacy, 61 A.D.3d 907, 908, 878 N.Y.S.2d 152).
Therefore, the Supreme Court properly denied that branch of Metro–North's motion which was for summary judgment on its cross claims for contractual indemnification against Allright and SCS. The Supreme Court properly denied that branch of Metro–North's motion which was for summary judgment on its cross claims for common-law indemnification, as Metro–North failed to establish its entitlement to judgment as a matter of law. The Supreme Court should have denied that branch of Allright's cross motion which was for summary judgment on its cross claim for contractual indemnification against SCS, as Allright failed to meet its prima facie burden, because there are triable issues of fact as to the negligence of Metro–North and Allright in connection with their monitoring of the snow removal process and the designation of the placement of the snow storage areas ( see Foster v. Herbert Slepoy Corp., 76 A.D.3d at 216, 905 N.Y.S.2d 226; Watters v. R.D. Branch Assoc., LP, 30 A.D.3d 408, 816 N.Y.S.2d 193; Boskey v. Gazza Props., 248 A.D.2d 344, 346, 669 N.Y.S.2d 624). Finally, Metro–North failed to meet its prima facie burden in moving for summary judgment on its cross claim against SCS alleging breach of contract for failure to procure insurance.
The third-party claims against SMG were grounded on allegations that, during the course of snow removal efforts, SMG negligently damaged that portion of the premises where the plaintiff was injured. Factual issues as to the cause and location of the alleged defect which gave rise to the plaintiffs injuries preclude the award of summary judgment dismissing the third-party claims for contractual and common-law indemnification insofar as asserted against SMG ( see Watters v R.D. Branch Assoc. LP, 30 AD3d 408; Baratta v Home Depot USA, 303 AD2d 434; Boskey v Gazza Props., 248 AD2d 344). Moreover, in opposition to the defendants third-party plaintiffs' prima facie establishment of their entitlement to judgment as a matter of law, based on SMG's failure to procure insurance naming it as an additional insured, SMG failed to submit evidentiary proof in admissible form sufficient to raise a triable issue of fact ( see Chaehee Jung v Kum Gang, Inc., 22 AD3d 441).
East Coast failed to raise a triable issue of fact in opposition to the Town's prima facie showing. Unlike the separate indemnity provision which the agreement also contained, the insurance procurement provision did not limit East Coast's obligation to procure insurance for the Town to claims "which might arise in connection with th[e] Agreement" ( cf. Waiters v R.D. Branch Assoc., LP, 30 AD3d 408; Taylor v Doral Inn, 293 AD2d 524). Accordingly, the judgment must be reversed and the Town's motion for summary judgment on the cause of action must be granted.
The plaintiff allegedly sustained injuries when he stepped on a piece of plywood covering a portion of a sidewalk that had been excavated in connection with the ongoing repair of columns supporting an elevated subway line above the sidewalk. The Supreme Court properly denied the appellants' motion for summary judgment on their cross claim for contractual indemnification against the defendant subcontractor M.A.C.C. Construction, Inc., because they failed to establish, as a matter of law, that the appellant American Bridge Company, the general contractor, was free from negligence ( see Itri Brick Concrete Corp. v Aetna Cas. Sur. Co., 89 NY2d 786, 795 [1997]; Coque v Wildflower Estates Devs., Inc., 31 AD3d 484, 489-490; Watters v R.D. Branch Assoc., LP, 30 AD3d 408, 409-410).
The plaintiffs allege that Bi-County is liable both in strict products liability and based on its negligent installation and service of the machine. Since Bi-County did not establish entitlement to summary judgment dismissing the negligence cause of action, it also failed to establish its entitlement to conditional summary judgment on its claim for indemnification against Berkel ( see Watters v R.D. Branch Assoc., LP, 30 AD3d 408, 409-410; cf. Godoy v Abamaster of Miami, supra). Thus, the conditional grant of summary judgment in favor of Bi-County on its cause of action for indemnification was premature.