State v. Ward Pavement, Inc. , 446 N.Y.S.2d 428 ( 1981 )

Appeal from an order of the Supreme Court at Special Term (Cholakis, J.), entered July 9,1980 in Albany County, which denied plaintiff’s motion for partial summary judgment. Plaintiff contends that, pursuant to a contractual obligation of defendant as general contractor for the reconstruction of a portion of highway, defendant must indemnify plaintiff for negligence causing injuries to a third person. (See King v State of New York, 56 AD2d 964, for a description of the accident at issue in this proceeding.) Defendant does not dispute such an obligation, even if plaintiff was actively negligent under some circumstances. However, defendant does contend that the negligence in this case occurred as to work items which were not covered by its contract with plaintiff. The present record does not conclusively establish that the accident herein was related to defendant’s contractual obligation and, accordingly, the motion for summary judgment was properly rejected. Order affirmed, with costs. Sweeney, J. P., Main, Casey, Mikoll and Herlihy, JJ., concur.