Estate of Martinez v. Hollywood Atrium Gym

In an action to recover damages for personal injuries, the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Jonas, J.), dated March 21, 2006, as granted that branch of the motion of the defendants Hollywood Atrium Gym and 235 Mill Street, Inc., which was for a conditional order of indemnification.

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was for a conditional order of indemnification in favor of the defendant 235 Mill Street, Inc., and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court erred in determining that 235 Mill Street, *638Inc., was entitled to a conditional order of indemnification since only Hollywood Atrium Gym (hereinafter Hollywood) was a party to the third-party action. However, the Supreme Court correctly determined that Hollywood was entitled to a conditional order of indemnification. The admissible evidence established that Hollywood was not negligent and that the third-party defendant exercised exclusive direction, supervision, and control over the plaintiffs decedent and his work (see Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 684-685 [2005]). Prudenti, P.J., Fisher, Dillon and Dickerson, JJ., concur.