Opinion
March 25, 1976
Judgment, Supreme Court, New York County, entered April 16, 1975 insofar as it dismissed the third-party complaint of third-party plaintiff Bethlehem Steel Corporation against third-party defendant Youngstown Cartage Company, reversed, on the law and the facts, and judgment directed in favor of said third-party plaintiff against third-party defendant. Appellant shall recover of respondent $60 costs and disbursements of this appeal. The operation of raising the steel beams from third-party defendant's truck to the place of storage on the 28th floor of the building under construction constitutes "loading and unloading" as defined in Wagman v American Fid. Cas. Co., 304 N.Y. 490; and Lamberti v Anaco Equip. Corp., 16 A.D.2d 121), and is thus covered by the indemnity agreement. The indemnity agreement was not invalid under section 5-323 Gen. Oblig. of the General Obligations Law. (Fuller Co. v Fischbach Moore, 7 A.D.2d 33, 34.) Section 5-322.1 Gen. Oblig. of the General Obligations Law effective in August, 1975 is inapplicable.
Concur — Murphy, J.P., Lupiano, Burns and Silverman, JJ.; Nunez, J., would affirm for the reasons stated by Whitman, J. Settle order on notice.