Opinion
2012-10-11
Ilia NIEVES–HOQUE, etc., Plaintiff–Respondent, v. 680 BROADWAY, LLC, et al., Defendants, 680 Broadway, LLC., Third–Party Plaintiff–Respondent, v. M.D. Robiul Hoque Co., Inc., Third–Party Defendant–Appellant. [And A Second Third–Party Action] Marc Jancou Fine Art Limited, Third Third–Party Plaintiff–Respondent, v. M.D. Robiul Hoque Co., Inc., Third Third–Party Defendant–Appellant.
Linda A. Stark, New York, for appellant.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered July 27, 2011, which, insofar as appealed from as limited by the briefs, granted the motion of third-party plaintiff 680 Broadway LLC (680 Broadway) for summary judgment on its claim for common-law indemnification from third-party defendant M.D. Robiul Hoque Co., Inc. (Hoque) and denied Hoque's motion for summary judgment dismissing 680 Broadway's third-party complaint, unanimously reversed, on the law, without costs, 680 Broadway's motion denied and Hoque's motion granted. The Clerk is directed to enter judgment accordingly.
In this action arising out of the injury and death of plaintiff's decedent, the motion court erred in granting 680 Broadway summary judgment on its common-law indemnification claim against Hoque (decedent's employer). Prior to the grant of indemnification, the court had granted 680 Broadway's motion for summary judgment dismissing plaintiff's complaint on the ground that there was no non-speculative basis for its liability. Absent liability, vicarious or otherwise, there is no basis for indemnification ( see McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 377–378, 929 N.Y.S.2d 556, 953 N.E.2d 794 [2011] ).