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Guarnieri v. Essex Homes of WNY

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 22, 2005
24 A.D.3d 1266 (N.Y. App. Div. 2005)

Opinion

CA 05-01564.

December 22, 2005.

Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), entered November 12, 2004 in a personal injury action. The order denied the motion of defendant-third-party plaintiff seeking summary judgment in the third-party action.

Present: Green, J.P., Hurlbutt, Kehoe, Gorski and Martoche, JJ.


It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Raymond Guarnieri (plaintiff) when he fell during the construction of a garage roof. Defendant and third-party plaintiff, the general contractor, commenced a third-party action against plaintiff's employer seeking contractual indemnification. Supreme Court properly denied the motion of defendant-third-party plaintiff seeking summary judgment in the third-party action. The indemnification provision of the agreement between defendant-third-party plaintiff and third-party defendant is triggered only in the event of a finding of an intentionally wrongful act or a negligent act or omission by third-party defendant or his agents, employees or contractors. Defendant and third-party plaintiff failed to establish such an act or omission and thus failed to establish its entitlement to judgment as a matter of law ( see Hennard v. Boyce, 6 AD3d 1132, 1134; Niagara Frontier Transp. Auth. v. City of Buffalo Sewer Auth., 1 AD3d 893, 895).


Summaries of

Guarnieri v. Essex Homes of WNY

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 22, 2005
24 A.D.3d 1266 (N.Y. App. Div. 2005)
Case details for

Guarnieri v. Essex Homes of WNY

Case Details

Full title:RAYMOND GUARNIERI et al., Plaintiffs, v. ESSEX HOMES OF WNY, Defendant and…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 22, 2005

Citations

24 A.D.3d 1266 (N.Y. App. Div. 2005)
805 N.Y.S.2d 889

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