Opinion
2013-11-13
PHILADELPHIA INDEMNITY INSURANCE CO., etc., plaintiff, v. AMI DEVELOPMENT, LLC, appellant, S&J Industrial Corp., respondent.
Carroll, McNulty & Kull LLC, New York, N.Y. (Michael R. Schneider of counsel), for appellant. Epstein, Gialleonardo, Harms & McDonald, New York, N.Y. (Austin P. Murphy, Jr., of counsel), for respondent.
Carroll, McNulty & Kull LLC, New York, N.Y. (Michael R. Schneider of counsel), for appellant. Epstein, Gialleonardo, Harms & McDonald, New York, N.Y. (Austin P. Murphy, Jr., of counsel), for respondent.
In an action to recover damages for injury to property, the defendant AMI Development, LLC, appeals from an order of the Supreme Court, Kings County (Martin, J.), dated July 5, 2012, which denied its motion for summary judgment on its cross claim against the defendant S&J Industrial Corp. for contractual defense and indemnification, and common-law indemnification.
ORDERED that the order is modified, on the law, by adding thereto the words “without prejudice to renewal upon the completion of discovery” following the words “denied in its entirety,” contained in the first sentence of the last paragraph thereof; as so modified, the order is affirmed, with costs payable to the respondent.
Contrary to the contentions of the defendant AMI Development, LLC (hereinafter AMI), the Supreme Court properly denied its motion for summary judgment on its cross claim upon finding, inter alia, that AMI failed to establish its prima facie entitlement to judgment as a matter of law on its claims for contractual defense and indemnification, and common-law indemnification because it failed to demonstrate its own freedom from negligence ( see generally Mikelatos v. Theofilaktidis, 105 A.D.3d 822, 823, 962 N.Y.S.2d 693;Ventimiglia v. Thatch, Ripley & Co., LLC, 96 A.D.3d 1043, 1047–1048, 947 N.Y.S.2d 566).
However, under the circumstances of this case, and in view of the fact that substantial discovery has yet to be conducted in this litigation, we modify the denial of summary judgment by making it without prejudice to renewal upon the completion of discovery ( see *805Taylor v. Krebs, 90 A.D.3d 645, 933 N.Y.S.2d 902;Spinelli v. Vornado Burnside Plaza, LLC, 85 A.D.3d 897, 925 N.Y.S.2d 192).
AMI's remaining contention is without merit.