

Tali Plaza of Nyack, LLC v Village of Nyack (2016 NY Slip Op 08976)





Tali Plaza of Nyack, LLC v Village of Nyack


2016 NY Slip Op 08976


Decided on December 30, 2016


Appellate Division, Second 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 on December 30, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

L. PRISCILLA HALL, J.P.
SANDRA L. SGROI
JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.


2015-00349
 (Index No. 32812/11)

[*1]Tali Plaza of Nyack, LLC, plaintiff, 
vVillage of Nyack, defendant third-party plaintiff-respondent, et al., defendant; A-Tech Concrete Company, Inc., third-party defendant-appellant.


Lori D. Fishman, Tarrytown, NY (D. Bradford Sessa of counsel), for third-party defendant-appellant.
MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, NY (William K. Kerrigan of counsel), for defendant third-party plaintiff-respondent.

DECISION & ORDER
In an action, inter alia, to recover damages for injury to property, the third-party defendant, A-Tech Concrete Company, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Walsh II, J.), dated January 12, 2015, as denied that branch of its motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the motion of the third-party defendant which was for summary judgment dismissing the cause of action for contractual indemnification, asserted in the third-party complaint. The third-party defendant failed to meet its initial burden of demonstrating the absence of any material issues of fact, as there exists a triable issue of fact as to whether the indemnification clause in the contract between the third-party defendant and the third-party plaintiff was triggered (see Alvarez v Prospect Hosp., 68 NY2d 320; Khadka v American Home Mtge. Servicing, Inc.,139 AD3d 808; Murphy v Eagle Scaffolding, Inc., 129 AD3d 799; Rodriguez v Tribeca 105, LLC, 93 AD3d 655).
HALL, J.P., SGROI, MALTESE and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


