Opinion
2013-11-21
Emilio CUOMO, Plaintiff, v. 53RD AND 2ND ASSOCIATES, LLC, et al., Defendants. 53rd & 2nd Associates, LLC, et al., Third–Party Plaintiffs–Appellants, v. Sage Electrical Contracting, Third–Party Defendant–Respondent.
London Fischer LLP, New York (Gregg D. Minkin of counsel), for appellants. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville (Kevin Murtagh of counsel), for respondent.
London Fischer LLP, New York (Gregg D. Minkin of counsel), for appellants. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville (Kevin Murtagh of counsel), for respondent.
GONZALEZ, P.J., TOM, RENWICK, FREEDMAN, CLARK, JJ.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered May 8, 2013, which denied third-party plaintiffs' motion for summary judgment declaring their entitlement to contractual defense and indemnification from third-party defendant (Sage) in the underlying personal injury action, unanimously modified, on the law, to grant the motion to the extent of declaring that 53rd and 2nd Associates, LLC (the owner) is entitled to indemnification and to the present payment of its defense costs, and that Plaza Construction Corp. is entitled to conditional indemnification to the extent it is found free from negligence in the underlying accident, and otherwise affirmed, without costs.
As Sage concedes, there is no issue of fact as to the owner's active culpability in the underlying accident, and therefore the owner is entitled to summary judgment on its claim for contractual indemnification ( see Fiorentino v. Atlas Park LLC, 95 A.D.3d 424, 426–427, 944 N.Y.S.2d 60 [1st Dept.2012]; Macedo v. J.D. Posillico, Inc., 68 A.D.3d 508, 510–11, 891 N.Y.S.2d 46 [1st Dept.2009] ).
Although, as third-party plaintiffs concede, there are issues of fact as to Plaza's active negligence, Plaza is entitled to conditional summary judgment on its claim for contractual indemnification; the extent of its indemnification depends on the extent to which any negligence on its part is found to have contributed to the accident ( see Hernandez v. Argo Corp., 95 A.D.3d 782, 783, 945 N.Y.S.2d 662 [1st Dept.2012]; Burton v. CW Equities, LLC, 97 A.D.3d 462, 463, 950 N.Y.S.2d 1 [1st Dept.2012] ).
However, Plaza's motion for an order requiring Sage to defend it must be denied as premature, since Sage is a non-insurer, and its duty to defend is not broader than its duty to indemnify ( see JPMorgan Chase Bank, N.A. v. Luxor Capital, LLC, 101 A.D.3d 575, 575–576, 957 N.Y.S.2d 45 [1st Dept.2012] ).
The owner being without fault and therefore unconditionally entitled to indemnification, Sage's express contractual duty to defend the owner also imposes upon it a present obligation to pay the costs of the owner's defense ( see State of New York v. Travelers Prop. Cas. Ins. Co., 280 A.D.2d 756, 758, 720 N.Y.S.2d 589 [3d Dept.2001]; see also State of New York v. Travelers Prop. Cas. Ins. Co., 2002 N.Y. Slip Op. 50139[U], 2002 WL 766284 [Sup. Ct., Broome County 2002] ).