Martinez v. ST-DIL LLC

Martinez v ST-DIL LLC (2021 NY Slip Op 06549)

Martinez v ST-DIL LLC

2021 NY Slip Op 06549

Decided on November 23, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 23, 2021
Before: Kern, J.P., Gesmer, González, Shulman, Higgitt, JJ.

Index No. 304631/14 Appeal No. 14685 Case No. 2021-00814

[*1]Victor Martinez, Plaintiff,

v

ST-DIL LLC, et al., Defendants-Appellants.



The Liberty Blue Group LLC, Third-Party Plaintiff-Appellant,

v

EM Windsor Construction Company, Inc., Third-Party Defendant-Respondent.



ST-DIL LLC, Second Third-Party Plaintiff-Appellant,

v

EM Windsor Construction Company, Inc., Second Third-Party Defendant-Respondent.

Baxter Smith & Shapiro, P.C., Hicksville (Sim R. Shapiro of counsel), for appellants.

Devitt Spellman & Barrett, LLP, Smithtown (Christi M. Kunzig of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered September 15, 2020, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment on their contractual indemnification and breach of contract claims against third-party and second third-party defendant EM Windsor Construction Company, Inc., unanimously affirmed, without costs.

Summary judgment in favor of defendants, the construction project owner and general contractor, on their claim for contractual indemnification against subcontractor EM Windsor is precluded by issues of fact as to whether they supervised and controlled the method and means of plaintiff's work and were solely responsible for plaintiff's accident (see Cackett v Gladden Props., LLC, 183 AD3d 419, 422 [1st Dept 2020]; Nenadovic v P.T. Tenants Corp., 94 AD3d 534, 535 [1st Dept 2012]).

Defendants failed to establish prima facie that EM Windsor failed to procure insurance on their behalf and thus are not entitled to summary judgment on their claim for breach of contract, regardless of the sufficiency of EM Windsor's opposition (see Komonaj v Curanovic, 90 AD3d 505 [1st Dept 2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 23, 2021