Opinion
November 14, 1989
Appeal from the Supreme Court, New York County (Herman Cahn, J.).
In this action by plaintiff, a construction manager, seeking to recover monetary damages allegedly due to improper construction of an atrium at 277 Park Avenue, New York, the record below reveals that plaintiff's cross claim for express indemnification was properly dismissed because the indemnification provision in question was limited solely to tort, and not contractual, liability to third parties (Board of Educ. v Sargent, Webster, Crenshaw Folley, 71 N.Y.2d 21, 29; Drzewinski v Atlantic Scaffold Ladder Co., 70 N.Y.2d 774, 777; Dullard v Berkeley Assocs. Co., 606 F.2d 890, 894). Further, plaintiff's cross claims for implied indemnification were properly dismissed in that the plaintiff, which admittedly actively supervised the work of the subcontractors, thereby directly participated to some degree in the wrongdoing and, accordingly, cannot receive the benefit of the implied indemnification doctrine (County of Westchester v Welton Becket Assocs., 102 A.D.2d 34, 47, affd 66 N.Y.2d 642; Trustees of Columbia Univ. v Mitchell/Giurgola Assocs., 109 A.D.2d 449, 453).
Concur — Milonas, J.P., Rosenberger, Ellerin and Rubin, JJ.