Hurley v Best Buy Stores, L.P.

Hurley v Best Buy Stores, L.P. 2008 NY Slip Op 09477 [57 AD3d 239] December 4, 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

Michael Hurley, Plaintiff,
v
Best Buy Stores, L.P., et al., Defendants. Schimenti Construction Company, LLC, Third-Party Plaintiff-Respondent, v Sage Electrical Contracting, Inc., Third-Party Defendant-Appellant. Best Buy Stores, L.P., et al., Second Third-Party Plaintiffs-Respondents, v Sage Electrical Contracting, Inc., Second Third-Party Defendant-Appellant.

—[*1] Camacho Mauro Mulholland, LLP, New York (Kathleen M. Mulholland of counsel), for appellant.

McManus, Collura & Richter, P.C., New York (Nicholas P. Chrysanthem of counsel), for respondents.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered January 4, 2008, which, to the extent appealed from as limited by the briefs, granted so much of defendants/third-party plaintiff and second third-party plaintiffs' motion for summary judgment on their third-party claims for contractual indemnification against Sage Electrical Contracting, unanimously reversed, on the law, without costs, the motion denied, and the matter remanded for further proceedings.

The contractual indemnification provision, which applies to claims "arising out of or in consequence" of performance by Sage of its work on the project, is broad enough to apply here, where plaintiff was injured while performing electrical work for Sage on the project (see Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268 [2007]). However, defendants never moved for summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action against [*2]them, or otherwise established their freedom from negligence as a matter of law (see Brennan v 42nd St. Dev. Project, Inc., 10 AD3d 302 [2004]). Since there is a possibility plaintiff could prevail on a theory of negligent coordination of demolition and electrical projects that resulted in a dangerous condition allowing a lighting fixture to swing down and hit plaintiff, the grant of summary judgment on the indemnification claims was premature (see McKenna v Lehrer McGovern Bovis, 302 AD2d 329, 331 [2003]). Concur—Mazzarelli, J.P., Friedman, Gonzalez, Buckley and Sweeny, JJ. [See 2008 NY Slip Op 30003(U).]