Opinion
14572 Index No. 156626/15 595242/16, 595084/18 Case No. 2021–02444
11-09-2021
Vincent MANCUSI, Plaintiff–Respondent, v. AVALONBAY COMMUNITIES, INC., et al., Defendants–Respondents. And a Third–Party Action Avalonbay Communities, Inc., et al., Second Third–Party Plaintiffs–Respondents, v. S.J. Electric, Inc., Second Third–Party Defendant–Appellant.
O'Connor Redd Orlando LLP, Port Chester (Peter Urreta of counsel), for appellant. Harrington, Ocko & Monk, LLP, White Plains (I. Paul Howansky of counsel), for respondents.
O'Connor Redd Orlando LLP, Port Chester (Peter Urreta of counsel), for appellant.
Harrington, Ocko & Monk, LLP, White Plains (I. Paul Howansky of counsel), for respondents.
Manzanet–Daniels, J.P., Oing, Moulton, Scarpulla, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about May 5, 2020, which, to the extent appealed from as limited by the briefs, denied second third-party defendant S.J. Electric, Inc.’s (SJE) motion for summary judgment dismissing contractual indemnification claim as against it, and granted defendants/second third-party plaintiffs’ cross motion for conditional summary judgment on the contractual indemnification claim, unanimously affirmed, without costs.
The provision requiring indemnification by SJE was triggered, since the injuries to plaintiff, an SJE employee, arose out of the performance of the work (see Aramburu v. Midtown W. B, LLC, 126 A.D.3d 498, 500–501, 6 N.Y.S.3d 227 [1st Dept. 2015] ; Fuger v. Amsterdam House for Continuing Care Retirement Community, Inc., 117 A.D.3d 649, 650, 987 N.Y.S.2d 322 [1st Dept. 2014] ). Whether SJE was negligent is irrelevant, since according to the terms of the provision, it may be required to provide indemnification even when it is not negligent (see Santos v. BRE/Swiss, LLC, 9 A.D.3d 303, 304, 780 N.Y.S.2d 585 [1st Dept. 2004] ). Further, the indemnification provision, which has a savings clause limiting any indemnification to the extent permitted by law, does not violate General Obligations Law § 5–322.1(1), which allows contractual provisions requiring indemnification whether or not the promisor is partially negligent (see Ramirez v. Almah, LLC, 169 A.D.3d 508, 509, 94 N.Y.S.3d 38 [1st Dept. 2019] ; Radeljic v. Certified of N.Y., Inc., 161 A.D.3d 588, 590, 77 N.Y.S.3d 397 [1st Dept. 2018] ).
Contrary to SJE's contention, the laws of contribution, which provide that there can be no unequal apportionment of liability between an employer vicariously liable for the acts of its employees and the employee himself, do not apply here, since there is no common-law contribution claim at issue (see Lachhonna v. Consolidated Edison Co. of N.Y., 170 A.D.2d 191, 191, 565 N.Y.S.2d 90 [1st Dept. 1991] ; see also Kendall v. Venture Dev., Inc., 206 A.D.2d 797, 799 n. 3, 615 N.Y.S.2d 775 [3d Dept. 1994] ).
We have considered SJE's remaining contentions and find them unavailing.