Summary
declining to adopt exception to general rule where "record discloses the existence of factual issues regarding plaintiffs potential negligence arising out of it supervision and control over the worksite. If it is ultimately determined that plaintiff was negligent and that its negligence contributed to [third party's] injuries, plaintiff cannot prevail upon its indemnification claims"; Bay Ridge Air Rights, Inc. v. State, 57 A.D.2d 237, 239, 394 N.Y.S.2d 464, 466 (3d Dep't 1977), aff'd, 44 N.Y.2d 49, 404 N.Y.S.2d 73 (where "there has been neither entry of judgment nor payment[,] and there is no suggestion that" interests of fairness and judicial economy will be furthered by allowing all parties to establish their rights and liabilities in one action . . . we choose not to depart from the general rule that `the obligation or liability which is the subject of the indemnity must have accrued and become fixed before an action to recover indemnity therefor[e] may be maintained'")
Summary of this case from Intellisec v. Firecom, Inc.Opinion
April 16, 1998
Appeal from the Supreme Court (Coutant, J.).
This appeal arises out of an accident that occurred when Rollo Reed, an ironworker, fell from scaffolding while working on a bridge owned by plaintiff located in the City of Binghamton, Broome County. Plaintiff had contracted with defendant Watertown Construction Company, Inc. to repair the bridge. Watertown, in turn, subcontracted with defendant Syracuse Rigging Company, Inc. to perform certain iron work, including the installation of new bridge girders. Reed was employed by Syracuse at the time of the accident. Thereafter, Reed and his wife commenced an action against plaintiff in the Court of Claims alleging causes of action for negligence and violations of various provisions of the Labor Law.
Plaintiff, in turn, commenced these actions against defendants in Supreme Court seeking, inter alia, indemnification in the Reeds' Court of Claims' action. The Reeds subsequently moved for summary judgment against plaintiff on their Labor Law § 240 (1) cause of action. Prior to a decision on that motion, plaintiff moved for summary judgment on its indemnification claims and to consolidate its actions against defendants. Defendants, in turn, cross-moved for summary judgment dismissing plaintiff's indemnification claims. Supreme Court inter alia, granted defendants' cross motions and dismissed the indemnification claims as premature. Following the Court of Claims' grant of the Reeds' motion for summary judgment on their Labor Law § 240 (1) cause of action, plaintiff moved for reconsideration of the prior motion, which Supreme Court denied. Plaintiff appeals from the orders denying summary judgment and its motion for reconsideration.
For the purpose of these appeals, defendants have stipulated to the consolidation of the actions.
We find no merit to plaintiff's claim that Supreme Court should have granted a conditional judgment of indemnification in its actions against defendants. As a general rule, a claim for indemnification does not accrue until payment has been made by the party seeking indemnification ( see, McDermott v. City of New York, 50 N.Y.2d 211, 216; Alside, Inc. v. Spancrete Northeast, 84 A.D.2d 616, 617; Bay Ridge Air Rights v. State of New York, 57 A.D.2d 237, 238, affd 44 N.Y.2d 49). Departure from this rule may be warranted where the interests of justice and judicial economy so dictate ( see, State of New York v. Ehasz, 80 A.D.2d 671, 672; Bay Ridge Air Rights v. State of New York, supra, at 239). In such an instance, the issuance of a conditional judgment of indemnification, pending the outcome of the main action, is appropriate "in order that the indemnitee obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed" ( O'Brien v. Key Bank, 223 A.D.2d 830, 831; see, e.g., Schwalm v. County of Monroe, 158 A.D.2d 994; Blair v. County of Albany, 127 A.D.2d 950).
In this case, it is undisputed that plaintiff has not made payment to the Reeds on the judgment obtained in connection with their Labor Law § 240 (1) cause of action. Therefore, plaintiff's indemnification claims are clearly premature and we find no reason to depart from the general rule under the circumstances presented herein. The record discloses the existence of factual issues regarding plaintiff's potential negligence arising out of its supervision and control over the worksite. If it is ultimately determined that plaintiff was negligent and that its negligence contributed to Reed's injuries, plaintiff cannot prevail upon its indemnification claims ( see, Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 180; O'Brien v. Key Bank, supra, at 831-832; Kozerski v. Deer Run Homeowners Assn., 217 A.D.2d 841, 843). In view of this, we find no reason to disturb Supreme Court's dismissal of plaintiff's indemnification claims as premature ( see, Zgoba v. Easy Shopping Corp., 246 A.D.2d 539; Alside, Inc. v. Spancrete Northeast, supra, at 617; cf., State of New York v. Ehasz, supra, at 672).
Turning to plaintiff's motion for reconsideration, plaintiff alleged in support of the application that a judgment had been rendered against it in the Court of Claims. Because that allegation would not change the disposition of plaintiff's summary judgment motion, we find no abuse of discretion in Supreme Court's denial of the motion ( see, Matter of Cario v. Sobol, 157 A.D.2d 172, 176).
Mikoll, Mercure, Crew III and Yesawich Jr., JJ., concur.
Ordered that the orders are affirmed, with one bill of costs.