Opinion
No. 2010-00311.
April 26, 2011.
In an action, inter alia, to recover damages for personal injuries, etc., and a related third-party action, the third-party defendant appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated September 24, 2009, which granted the motion of the defendant/third-party plaintiff for conditional summary judgment on its third-party cause of action for contractual indemnification.
Armienti, DeBellis, Guglielmo Rhoden, LLP, New York, N.Y. (Vanessa M. Corchia of counsel), for third-party defendant-appellant.
Brody, O'Connor O'Connor, Northport, N.Y. (Scott A. Brody, Patricia A. O'Connor, and Joseph P. Minasi of counsel), for defendant third-party plaintiff-respondent.
Before: Angiolillo, J.P., Florio, Lott and Austin, JJ.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendant/third-party plaintiff for conditional summary judgment on its third-party cause of action for contractual indemnification is denied as premature.
"[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" ( Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662, citing General Obligations Law § 5-322.1; see Reynolds v County of Westchester, 270 AD2d 473). Here, the Supreme Court erred in granting the motion of the defendant/third-party plaintiff which was for conditional summary judgment on its third-party cause of action for contractual indemnification, as there are issues of fact as to whose negligence, if any, caused the plaintiffs accident ( see Erickson v Cross Ready Mix, Inc., 75 AD3d 519, 524; George v Marshalls of MA, Inc., 61 AD3d 925, 930; Chun v Ecco III Enters., 268 AD2d 454, 454-455). Under these circumstances, it was premature to reach the issue of contractual indemnification ( see Erickson v Cross Ready Mix, Inc., 75 AD3d at 524; George v Marshalls of MA, Inc., 61 AD3d at 930; Chun v Ecco III Enters., 268 AD2d at 454-455).
The third-party defendant's remaining contention is not properly before this Court.