Colyer v. K Mart Corp.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Third-party defendant Margret M. Diehl, doing business as Mirage Development (Mirage), appeals from those portions of an order that granted the motion of defendants and third-party plaintiffs, K Mart Corporation (K Mart) and Dominick P. Massa and Sons, Inc. (Massa), for summary judgment on their third-party claims against Mirage seeking common-law and contractual indemnification and that denied the motion of Mirage for summary judgment on its cross claim seeking common-law indemnification from third-party defendant Larry Colyer Masonry, Inc. (LCM). Supreme Court erred in granting that part of the motion of K Mart and Massa seeking summary judgment on their third-party claim for contractual indemnification. The indemnification provision is triggered *810only in the event of a finding of negligence on the part of Mirage or its agents, employees or subcontractors. There is no basis in the record to find such negligence as a matter of law (see, Malecki v Wal-Mart Stores, 222 AD2d 1010, 1011; Baskewicz v Rochester Gas & Elec. Corp., 217 AD2d 922, 923; Hayes v Crane Hogan Structural Sys., 191 AD2d 978, 979; Stimson v Lapp Insulator Co., 186 AD2d 1052, 1053), and thus we modify the order by denying that part of the motion.

The court properly granted, however, that part of the motion of K Mart and Massa for summary judgment on their third-party claim for common-law indemnification. The right of common-law indemnification belongs to parties determined to be vicariously liable without proof of any negligence or active fault on their own part (see, Kemp v Lakelands Precast, 55 NY2d 1032, 1034; Kelly v Diesel Constr. Div., 35 NY2d 1, 5-7). As a matter of law, K Mart and Massa are such parties, given their demonstrated lack of supervision, direction or control over the work (see, Kemp v Lakelands Precast, supra, at 1034; Livecchi v Eastman Kodak Co., 258 AD2d 916; Aman v Federal Express Corp., 247 AD2d 879, 880). An owner’s or contractor’s general authority to coordinate the work and monitor its progress and safety conditions is not a basis for denying common-law indemnification (see, Siago v Garbade Constr. Co., 262 AD2d 945; Boshnakov v Higgins-Kieffer, Inc., 255 AD2d 983). The obligation of common-law indemnification runs against those parties who, by virtue of their direction and supervision over the injury-producing work, were actively at fault in bringing about the injury (see, Felker v Corning Inc., 90 NY2d 219, 226; Glielmi v Toys “R” Us, 62 NY2d 664, 666-667; Frank v Meadowlakes Dev. Corp., 256 AD2d 1141, 1143). As a matter of law, Mirage is such a party, given the uncontroverted evidence that it had the contractual obligation to supervise and control the work (see, Felker v Corning Inc., supra, at 226; Golda v Hutchinson Enters., 247 AD2d 863). We nonetheless further modify the order by deleting the word “conditional” from the second ordering paragraph. Plaintiffs were awarded summary judgment on liability against Massa and K Mart, and Mirage is obligated at common law to indemnify K Mart and Massa for their costs incurred in defense of plaintiffs’ action (see, Chapel v Mitchell, 84 NY2d 345, 347-348) irrespective of whether defendants ultimately are ordered to pay damages to plaintiffs (see, Reynolds v Ciminelli-Walbridge, 261 AD2d 839, 840).

The court properly denied the motion of Mirage for summary judgment on its cross claim seeking common-law indemnification from LCM. Mirage has been held, as a matter of law, to be *811obligated to indemnify K Mart and Massa. Because indemnification runs only in favor of a party not actively at fault against a party actively at fault, Mirage is not entitled to common-law indemnification from LCM (cf., Leo v Artco Contr., 266 AD2d 808; Szymanski v Nabisco, Inc., 256 AD2d 1154, 1155; Eastman v Volpe Mfg. USA, Co., 229 AD2d 913). The relative responsibility of those two entities raises an issue of apportionment or contribution (see generally, Rosado v Proctor & Schwartz, 66 NY2d 21, 23-25). (Appeal from Order of Supreme Court, Ontario County, Scudder, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Hayes, Wisner and Kehoe, JJ.