Opinion
12-30-2016
TALI PLAZA OF NYACK, LLC, plaintiff, v. VILLAGE OF NYACK, defendant third-party plaintiff-respondent, et al., defendant; A–Tech Concrete Company, Inc., third-party defendant-appellant.
Lori D. Fishman, Tarrytown, N.Y. (D. Bradford Sessa of counsel), for third-party defendant-appellant. MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (William K. Kerrigan of counsel), for defendant third-party plaintiff-respondent.
Lori D. Fishman, Tarrytown, N.Y. (D. Bradford Sessa of counsel), for third-party defendant-appellant.
MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (William K. Kerrigan of counsel), for defendant third-party plaintiff-respondent.
In an action, inter alia, to recover damages for injury to property, the third-party defendant, A–Tech Concrete Company, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Walsh II, J.), dated January 12, 2015, as denied that branch of its motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the motion of the third-party defendant which was for summary judgment dismissing the cause of action for contractual indemnification, asserted in the third-party complaint. The third-party defendant failed to meet its initial burden of demonstrating the absence of any material issues of fact, as there exists a triable issue of fact as to whether the indemnification clause in the contract between the third-party defendant and the third-party plaintiff was triggered (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Khadka v. American Home Mtge. Servicing, Inc., 139 A.D.3d 808, 29 N.Y.S.3d 819 ; Murphy v. Eagle Scaffolding, Inc., 129 A.D.3d 799, 11 N.Y.S.3d 218 ; Rodriguez v. Tribeca 105, LLC, 93 A.D.3d 655, 939 N.Y.S.2d 546 ).
HALL, J.P., SGROI, MALTESE and DUFFY, JJ., concur.