Caruso v. Inhilco, Inc.

Dec 22, 2003
Versions:2 A.D.3d 662
768 N.Y.S.2d 639
2003 N.Y. App. Div. LEXIS 13807

In an action to recover damages for personal injuries, etc., the third-party defendant appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated February 14, 2002, which, upon a jury verdict finding the defendant third-party plaintiff liable to the plaintiffs for a violation of Labor Law § 241 (6), granted the motion of the defendant third-party plaintiff for indemnification against it.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the third-party complaint is dismissed.

The defendant third-party plaintiff, Inhilco, Inc. (hereinafter Inhilco), was not entitled to contractual indemnification for its own negligence (see Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786 [1997]; Carriere v Whiting Turner Contr., 299 AD2d 509 [2002]). The broad indemnity clause of Inhilco’s contract with the third-party defendant, Triad Project Management, Inc. (hereinafter Triad), for any claims for bodily injury “that may arise from . . . operations under this Agreement” was illegal (see Stottlar v Ginsburg Dev. Corp. , 89 NY2d 786 [1997]; Carriere v Whiting Turner Contr., supra).

Moreover, Inhilco failed to meet its burden of establishing its entitlement to common-law indemnification (see Wagner v Skanska Const. Co., 289 AD2d 324 [2001]; Belcastro v Hewlett-Woodmere Union Free School Dist. No. 14, 286 AD2d 744, 747 [2001]).

*663Further, since Inhilco settled with the plaintiffs without securing Triad’s waiver of prohibition of contribution prior to an adjudication of damages, it was not entitled to contribution against Triad (see General Obligations Law § 15-108 [c]; Mitchell v New York Hosp., 61 NY2d 208 [1984]; Lunn v County of Nassau, 115 AD2d 457 [1985]; Makeun v State of New York, 98 AD2d 583 [1984]). Ritter, J.P., Smith, Goldstein and H. Miller, JJ., concur.