Mejia v Levenbaum

Mejia v Levenbaum 2008 NY Slip Op 09446 [57 AD3d 216] December 2, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Manuel Mejia, Plaintiff,
v
Andrew R. Levenbaum, Respondent, and Tam Restaurants, Inc., et al., Appellants, et al., Defendants.

—[*1] Fogarty, Felicione & Duffy, P.C., Mineola (Patrick J. Fogarty of counsel), for appellants.

Camacho Mauro Mulholland, LLP, New York (Eric L. Cooper of counsel), for respondent.

Order, Supreme Court, Bronx County (Alan Saks, J.), entered November 29, 2007, which, insofar as appealed from, in an action for personal injuries, granted defendant Andrew Levenbaum's motion to renew his prior motion for summary judgment on his cross claim against defendants Tam Restaurants, Inc. and Plum Third Street, Corp. for common-law indemnification, and, upon renewal, granted Levenbaum's motion to the extent of awarding him summary judgment on the cross claim as against Tam Restaurants, unanimously affirmed, with costs.

This Court previously determined that Levenbaum bears no liability to plaintiff and that Plum Third, which is owned by Tam Restaurants, directed plaintiff's work at the time that he was injured (30 AD3d 262 [2006]). Accordingly, since Levenbaum is free from active negligence and Plum Third had direct control over the work giving rise to the injury, summary judgment on the issue of Levenbaum's cross claim for common-law indemnification against Tam Restaurants [*2]was not premature (see Rodriguez v Metropolitan Life Ins. Co., 234 AD2d 156 [1996]; see also Tighe v Hennegan Constr. Co., Inc., 48 AD3d 201, 202 [2008]). Concur—Mazzarelli, J.P., Saxe, Catterson, Renwick and Freedman, JJ.