Opinion
2012-10-25
JIAN–GUO YU, et al., Plaintiffs, v. GREENWAY MEWS REALTY LLC, et al., Defendants, Greenway Mews Realty LLC, Third–Party Plaintiff, Little Rest Twelve, Inc., Third–Party Plaintiff–Appellant, v. UAD Group, Third–Party Defendant–Respondent.
DLA Piper LLP (US), New York (Aidan M. McCormack of counsel), for appellant. Clausen Miller PC, New York (Melinda S. Kollross of counsel), for respondent.
DLA Piper LLP (US), New York (Aidan M. McCormack of counsel), for appellant. Clausen Miller PC, New York (Melinda S. Kollross of counsel), for respondent.
Order, Supreme Court, New York County (Martin Shulman, J.), entered September 19, 2011, which denied defendant/third-party plaintiff Little Rest Twelve, Inc.'s motion for summary judgment on its contractual indemnification claim against third-party defendant UAD Group, unanimously reversed, on the law, without costs, and the motion granted. Appeal from order, same court and Justice, entered February 8, 2012, to the extent that, upon reargument, it adhered to the original determination, unanimously dismissed, without costs, as academic in light of the foregoing.
The contract between Little Rest and UAD Group provided that UAD Group would indemnify Little Rest against claims, damages, losses and expenses to the extent caused by the negligence of UAD Group or anyone directly or indirectly employed by it. Little Rest established prima facie that UAD Group was negligent in connection with the accident in which plaintiff, an employee of UAD Group, was injured, and that Little Rest was completely free from negligence. Plaintiff's testimony, read as a whole, makes clear that only UAD Group personnel ever directed his work and that UAD employees routinely climbed on top of glass skylights, without harnesses, to install glass panels. In opposition, UAD group failed to raise an issue of fact as to how the accident happened. Its contention that plaintiff was arguably negligent in the performance of his work is insufficient to defeat summary judgment, since the contract provided that UAD Group would indemnify Little Rest for losses caused by the negligence of its (UAD Group's) employees ( see e.g. 385 Third Ave. Assoc., L.P. v. Metropolitan Metals Corp., 81 A.D.3d 475, 476–477, 916 N.Y.S.2d 95 [1st Dept. 2011],lv. denied17 N.Y.3d 702, 929 N.Y.S.2d 92, 952 N.E.2d 1087 [2011] ).
UAD Group's argument that Little Rest is not entitled to contractual indemnification because it has not paid plaintiff any money and therefore has not sustained a loss mistakes the award of summary judgment for the execution of judgment. “[I]t serves the interest of justice and judicial economy [to] afford[ ] the indemnitee the earliest possible determination as to the extent to which [it] may expect to be reimbursed” ( Lowe v. Dollar Tree Stores, Inc., 40 A.D.3d 264, 265, 835 N.Y.S.2d 161 [1st Dept. 2007] [internal quotation marks omitted], lv. dismissed9 N.Y.3d 891, 842 N.Y.S.2d 769, 874 N.E.2d 734 [2007] ).