Thus, to the extent asserted, the driver defendants' cross claim for contractual indemnification is dismissed. "The principle of common-law, or implied indemnification, permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party" (Genesee/Wyoming YMCA v Bovis Lend Lease LMB, Inc., 98 A.D.3d 1242, 1244 [4th Dept 2012], quoting 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 A.D.2d 75, 80 [1st Dept 1999]; see D'Ambrosio v City of New York, 55 N.Y.2d 454, 460-461 [1982]; McDermott v City of New York, 50 N.Y.2d 211, 217 [1980], rearg denied 50 N.Y.2d 1059 [1980]). "The key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the indemnitor" (O'Toole v Marist Coll., 206 A.D.3d 1106, 1111 [3d Dept 2022] [internal quotation marks and citations omitted]). "Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine" (Genesee/Wyoming YMCA v Bovis Lend Lease LMB, Inc., 98 A.D.3d at 1244-1245 [internal quotation marks and citations omitted]).
As the Court of Appeals has held, "[c]ommon-law indemnification is generally available ‘in favor of one who is held responsible solely by operation of law because of his [or her] relation to the actual wrongdoer’ " ( McCarthy v. Turner Constr., Inc. , 17 N.Y.3d 369, 375, 929 N.Y.S.2d 556, 953 N.E.2d 794 [2011], quotingMas v. Two Bridges Assoc. , 75 N.Y.2d 680, 690, 555 N.Y.S.2d 669, 554 N.E.2d 1257 [1990] ). O'Toole as Tr. for Charafeddine v. Marist Coll. , 170 N.Y.S.3d 264, 268-69 (N.Y. App. Div. 2022). An implied indemnity claim has been found inapplicable where the party alleged to be at fault is an independent contractor.
, a third-party plaintiff is required to show that the third-party defendant owed it a duty of reasonable care... or that a duty was owed to the plaintiff[s] as [the] injured part[ies] and that a breach of that duty contributed to the alleged injuries" (O'Toole v Marist Coll., 206 A.D.3d 1106, 1111-1112 [3d Dept 2022 ] [internal quotation marks and citations omitted]). Accepting for purposes of the respective motions that the City and the Land Bank are part owners of the tree, we note, and the parties do not otherwise suggest, that neither had actual notice of any potential danger posed by the tree, thus requiring that the contribution claim against both entities be established on a theory of constructive notice.
In doing so, the court erred, as "[s]triking down a contract as indefinite and in essence meaningless is[,] at best[,] a last resort" (Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 N.Y.2d 88, 91 [1991] [internal quotation marks and citation omitted]; accord Tompkins Fin. Corp. v John M. Floyd & Assoc., Inc., 144 A.D.3d 1252, 1254 [3d Dept 2016]). We now undertake this analysis, first considering whether the parties' intent can be gleaned from the four corners of the prenuptial agreement, giving its language and provisions "their plain and ordinary meaning" (O'Toole v Marist Coll., 206 A.D.3d 1106, 1108 [3d Dept 2022] [internal quotation marks and citations omitted]).
These cross-appeals by plaintiffs, defendant and NXG ensued. "As longstanding case law reflects, summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action" ( O'Toole v. Marist Coll., 206 A.D.3d 1106, 1107–1108, 170 N.Y.S.3d 264 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted]; seeEDW Drywall Constr., LLC v. U.W. Marx, Inc. 189 A.D.3d 1720, 1721–1722, 135 N.Y.S.3d 204 [3d Dept. 2020] ). New York has adopted a common-law standard of reasonableness in determining the validity of employee agreements restricting an individual's right to work or compete (seeBDO Seidman v. Hirshberg, 93 N.Y.2d 382, 390, 690 N.Y.S.2d 854, 712 N.E.2d 1220 [1999] ).
Once a prima facie case has been established, the burden shifts to the party opposing the motion to demonstrate the existence of a material issue of fact" ( EDW Drywall Constr., LLC v. U.W. Marx, Inc., 189 A.D.3d 1720, 1721–1722, 135 N.Y.S.3d 204 [3d Dept. 2020] [citations omitted]; seeO'Toole v. Marist Coll., 206 A.D.3d 1106, 1107–1108, 170 N.Y.S.3d 264 [3d Dept. 2022] ).
Similarly, Appleberry's assertion that the bus driver should have slowed down as she approached the intersection is specious under these circumstances, where the bus accelerated from a standstill only a short distance from the intersection. Even viewing the evidence in the light most favorable to Appleberry, her arguments regarding purported questions of fact amount to "mere conclusions, expressions of hope or unsubstantiated allegations or assertions" ( O'Toole v. Marist Coll., 206 A.D.3d 1106, 1108, 170 N.Y.S.3d 264 [3d Dept. 2022] [internal quotation marks and citation omitted]). In short, while the bus driver had "a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident" ( Guerin v. Robbins, 182 A.D.3d 951, 951, 122 N.Y.S.3d 444 [3d Dept. 2020] [internal quotation marks and citation omitted]), the record leads us to conclude that there was no negligent conduct on the part of the bus driver and, therefore, TCAT (seeAlamo v. McDaniel, 44 A.D.3d 149, 153, 841 N.Y.S.2d 477 [1st Dept. 2007] ; Rowe v. Harrison, 303 A.D.2d at 864, 758 N.Y.S.2d 693 ).
JFS was accordingly contractually obliged to indemnify the County for the negligent performance of services by its agents under the agreement. Moreover, the County would be entitled to common-law indemnification from JFS if the County were "vicariously liable [for Hyde's negligence] without proof of any negligence or actual supervision on its own part" and JFS "exercise[d] actual supervision" over Hyde ( McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 377–378, 929 N.Y.S.2d 556, 953 N.E.2d 794 [2011] ; seeO'Toole v. Marist Coll., 206 A.D.3d 1106, 1111, 170 N.Y.S.3d 264 [3d Dept. 2022] ). As noted above, the record reveals significant factual disputes over not only the degree to which JFS actually provided services under the agreement, but also whether it exercised sufficient control over Hyde to render her its agent.