Opinion
6917 M–2871 Index 301790/11 83918/13
06-28-2018
Jose AGUILAR, Plaintiff, v. The CITY OF NEW YORK, et al., Defendants. [And a Third Party Action] Conair Corporation, Second Third–Party Plaintiff–Respondent, v. Ashlar Mechanical Corp., Second Third–Party Defendant–Appellant.
Law Office of Gizzo & Rayhill, Elmsford (Jonathan R. Walsh of counsel), for appellant. Burke, Conway & Dillon, White Plains (Michael G. Conway of counsel), for respondent.
Law Office of Gizzo & Rayhill, Elmsford (Jonathan R. Walsh of counsel), for appellant.
Burke, Conway & Dillon, White Plains (Michael G. Conway of counsel), for respondent.
Friedman, J.P., Sweeny, Webber, Kahn, Oing, JJ.
Order, Supreme Court, Bronx County (Joseph Capella, J.),
entered on or about January 24, 2018, which denied second third-party defendant Ashlar Mechanical Corporation's CPLR 3212 motion for summary judgment dismissing the second third-party action commenced by second third-party plaintiff Conair Corporation, unanimously affirmed, without costs.
It is well settled that summary judgment is a drastic remedy that should be employed only when there is no doubt as to the absence of triable issues (see Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974] ; Martin v. Briggs, 235 A.D.2d 192, 196, 663 N.Y.S.2d 184 [1st Dept. 1997] ). The court should accept as true the evidence submitted by the opposing party and evidence of the movant that favors the opposing party (see O'Sullivan v. Presbyterian Hosp. in City of N.Y. at Columbia Presbyt. Med. Ctr., 217 A.D.2d 98, 101, 634 N.Y.S.2d 101 [1st Dept. 1995] ).
The record contains no signed written indemnification agreement, but issues of fact still preclude summary judgment in Ashlar's favor, given other evidence of the parties' intent to be bound, including Ashlar's performance of the project at issue, and its receipt of payment therefor in the amount reflected in the agreement alleged by Conair (see Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363, 368–369, 795 N.Y.S.2d 491, 828 N.E.2d 593 [2005] ). Ashlar did not outright deny the existence of an indemnification agreement in its answer, and although its principal testified that he would have never signed an indemnification/insurance procurement agreement such as that alleged by Conair here, Conair's principal testified, to the contrary, that Ashlar had signed such agreements in the past, and that Conair's subcontractors generally were required to sign such agreements in order to be paid. The record further indicates that, in connection with at least one prior arrangement, Ashlar did procure insurance for Conair's benefit.
On this record, and in the context of conflicting testimony, summary judgment was properly denied (see Nevarez v. S.R.M. Mgt. Corp., 58 A.D.3d 295, 867 N.Y.S.2d 431 [1st Dept. 2008] ; Rosario v. Benmergui, 6 A.D.3d 311, 775 N.Y.S.2d 133 [1st Dept. 2004] ; Sierra v. C.C. Controlled Combustion Co., 308 A.D.2d 401, 764 N.Y.S.2d 629 [1st Dept. 2003] ).
We have considered counsel's remaining arguments and find them unavailing.