Opinion
Argued January 14, 1974
Decided February 22, 1974
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, THOMAS J. HUGHES, J.
Abraham Burstein for appellants.
George A. Burrell for defendant-respondent and third-party plaintiff-respondent.
William F. Larkin and Sebastian Randazzo for third-party defendant-respondent.
MEMORANDUM. The order of the Appellate Division should be reversed, the complaint reinstated and a new trial granted, with costs to abide the event. The verdict was inconsistent in holding Humble Oil and Refining Co. (Humble) liable for negligence, while exonerating Scarsdale Landscaping, Inc. (Scarsdale). At the least Scarsdale had a contractual obligation to indemnify and hold harmless Humble from any and all loss or damage occasioned by or in connection with the work performed by Scarsdale of snow and ice removal, and sanding, upon request. The liability, if any, of Humble to plaintiffs must be grounded in tort, while the liability over to Humble by Scarsdale could have been based upon contract, as well as tort. The charge of the court, with respect to the rule of Dole v. Dow Chem. Co. ( 30 N.Y.2d 143), was error, because if Humble were entitled on its third-party complaint to recover either on contract indemnity or because it had delegated to Scarsdale all responsibility for whatever caused the accident, there would be no apportionment of damages. (See Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 563, 565-566.)
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, RABIN and STEVENS concur in memorandum.
Order reversed, etc.