Opinion
Argued December 10, 1999
January 18, 2000
In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals from an order of the Supreme Court, Kings County (Held J.), dated November 17, 1998, which denied its motion for summary judgment on its third-party complaint for common-law indemnification.
Carole A. Burns, Mineola, N.Y. (Anthony W. Russo of counsel), for defendant third-party plaintiff-appellant.
James P. O'Connor (Clark Maffei, New York, N.Y. [Robert D. Clark] of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, THOMAS R. SULLIVAN and GABRIEL M. KRAUSMAN, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, and the motion is granted conditionally in the event of the entry of a judgment awarding damages in favor of the plaintiff and against the defendant third-party plaintiff.
The Supreme Court erred in denying the motion of the defendant third-party plaintiff 15 West 72nd Street Owners Corp. (hereinafter 15 West), for summary judgment on the third-party complaint for common-law indemnification against Joyce Contracting Co. (hereinafter Joyce). After 15 West made out a prima facie case that it was entitled to summary judgment because it did not direct or control the plaintiff's work, Joyce failed to raise a triable issue of fact (see, Rivera v. D'Allesandro, 248 A.D.2d 522; Lopez v. 36-2nd J Corp., 211 A.D.2d 667 ; Richardson v. Matarese, 206 A.D.2d 354 ). Although liability has not been determined in this case, the motion for summary judgment on the third-party complaint for common-law indemnification is not premature and may be granted conditionally (see, Clark v. 345 E. 52nd St. Owners, 245 A.D.2d 410 ;Rice v. PCM Dev. Agency Co., 230 A.D.2d 898 ).
BRACKEN, J.P., THOMPSON, SULLIVAN, and KRAUSMAN, JJ., concur.