From Casetext: Smarter Legal Research

Chun v. Ecco III Enterprises, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Jan 18, 2000
268 A.D.2d 454 (N.Y. App. Div. 2000)

Opinion

Argued November 22, 1999

January 18, 2000

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Alpert, J.), dated October 2, 1998, as denied its motion for summary judgment dismissing the complaint, or, in the alternative, for summary judgment against the third-party defendant, Agam Constructors, Inc., on its causes of action for contractual indemnification and to recover damages for breach of contract.

Garcia Stallone, Melville, N.Y. (Karl Zamurs of counsel), for defendant third-party plaintiff-appellant.

Levine Grossman, Mineola, N.Y. (Stacey Haskel and Scott Rubin of counsel), for plaintiffs-respondents.

Thurm Heller, LLP, New York, N.Y. (Roula Theofanis and Allison Snyder of counsel), for third-party defendant-respondent.

FRED T. SANTUCCI, J.P., DANIEL W. JOY, GLORIA GOLDSTEIN and SANDRA J. FEUERSTEIN, JJ.


DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant claims that it is entitled to summary judgment on its contractual indemnity claim. We disagree. The determination as to the applicability of the indemnification clause in the subject subcontract cannot be made until there is a finding and apportionment of liability between the appellant, the general contractor, and the third-party defendant, the subcontractor (see,Haddock v. Fordham Commercial Redevelopment Corp., 247 A.D.2d 327 ). Since there has been no finding made with respect to the parties' respective fault, if any, for the underlying injury, any award of summary judgment at this juncture would be premature (see, Maxwell v. Toys "R" Us, 258 A.D.2d 630 ).

The defendant's remaining contentions are without merit.

SANTUCCI, J.P., JOY, GOLDSTEIN, and FEUERSTEIN, JJ., concur.


Summaries of

Chun v. Ecco III Enterprises, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Jan 18, 2000
268 A.D.2d 454 (N.Y. App. Div. 2000)
Case details for

Chun v. Ecco III Enterprises, Inc.

Case Details

Full title:GARY CHUN, et al., plaintiffs-respondents, v. ECCO III ENTERPRISES, INC.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 18, 2000

Citations

268 A.D.2d 454 (N.Y. App. Div. 2000)
701 N.Y.S.2d 910

Citing Cases

McAllister v. Construction Consultants L.I

"[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent…

Fritz v. Sports Auth.

to meet their prima facie burden, we need not review the sufficiency of the plaintiff's opposition papers (…