Opinion
2014-05-8
Michael MIANO, Plaintiff–Respondent, v. BATTERY PLACE GREEN LLC, et al., Defendants/Third–Party Plaintiffs–Respondents, v. Five Star Electric Corp., Third–Party Defendant–Appellant.
White & McSpedon, P.C., New York (Joseph W. Sands of counsel), for appellant. Ahmuty Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for Battery Place Green LLC, Albanese Organization, Inc. and Turner Construction Company, respondents.
White & McSpedon, P.C., New York (Joseph W. Sands of counsel), for appellant. Ahmuty Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for Battery Place Green LLC, Albanese Organization, Inc. and Turner Construction Company, respondents.
SAXE, J.P., MOSKOWITZ, FREEDMAN, GISCHE, KAPNICK, JJ.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 10, 2013, which, to the extent appealed from as limited by the briefs, denied the motion of third-party defendant Five Star Electric Corp. (Five Star) for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.
Triable issues of fact exist as to whether Five Star, the electrical subcontractor responsible for providing temporary lighting in the building under construction, had constructive notice of the allegedly inadequate temporary lights in the stairwell at the time of plaintiff's accident ( see Beltran v. Navillus Tile, Inc., 108 A.D.3d 414, 415, 970 N.Y.S.2d 4 [1st Dept.2013] ), and whether inadequate lighting was a proximate cause of the accident ( see Robbins v. Goldman Sachs Headquarters, LLC, 102 A.D.3d 414, 958 N.Y.S.2d 96 [1st Dept.2013];Schirmer v. Athena–Liberty Lofts, LP, 48 A.D.3d 223, 851 N.Y.S.2d 168 [1st Dept.2008] ).
The indemnification provision of the contract between defendant Turner Construction Company, the construction project's general contractor, and Five Star is not void under General Obligations Law § 5–322.1. The provision provided for partial indemnification by including “savings” language ( see Williams v. City of New York, 74 A.D.3d 479, 480, 907 N.Y.S.2d 1 [1st Dept.2010] ).
In light of the triable issues of fact as to Five Star's negligence, its motion for summary judgment, seeking dismissal of the third-party claims for contractual indemnity, common-law indemnity and contribution, was properly denied ( see Robbins, 102 A.D.3d at 414, 958 N.Y.S.2d 96).
We have considered Five Star's remaining contentions and find them unavailing.