Opinion
2002-04733
Argued January 30, 2003.
February 24, 2003.
In an action to recover damages for personal injuries, the defendants Ciba-Geigy Corporation and Novartis Corporation, as successor-in-interest to Ciba-Geigy Corporation, appeal from so much of an order of the Supreme Court, Orange County (Owen, J.), dated April 17, 2002, as denied that branch of the cross motion of Novartis Corporation, as successor-in-interest to Ciba-Geigy Corporation, which was for summary judgment on its cross claim for contractual indemnification against the defendant Torcon, Inc.
Murphy Higgins, New Rochelle, N.Y. (Dan Schiavetta, Jr., of counsel), for appellants.
Gary A. Cusano, Tarrytown, N.Y. (Edwin B. Winder, Joanna L. Young, Silvia C. Souto, and Christian Soller of counsel), for respondent.
Before: NANCY E. SMITH, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the appeal by Ciba-Geigy Corporation is dismissed, as it is not aggrieved by the portion of the order appealed from (see CPLR 5511); and it is further,
ORDERED that the order is affirmed insofar as appealed from by Novartis Corporation, as successor-in-interest to Ciba-Geigy Corporation; and it is further,
ORDERED that one bill of costs is awarded to the defendant Torcon, Inc.
The appellant Novartis Corporation, as successor-in-interest to Ciba-Geigy Corporation (hereinafter the appellant) argues that it was entitled to summary judgment on its contractual indemnity cross claim. We disagree. Contrary to the appellant's contention, a determination as to the applicability of the indemnification clause at issue cannot be made until there is a finding that either the general contractor, the defendant Torcon, Inc., or the subcontractor, the defendant Mehl Electric Company, Inc., was negligent (see Taylor v. Bande Real Estate Corp., 278 A.D.2d 404). Since there has been no finding of negligence, any award of summary judgment would be premature (see Maxwell v. Toys "R" Us, 258 A.D.2d 630; Medina v. New York El. Co., 250 A.D.2d 656).
SMITH, J.P., KRAUSMAN, GOLDSTEIN and TOWNES, JJ., concur.