Baginski v. Queen Grand Realty, LLC
| Decision Date | 15 December 2009 |
| Docket Number | 2008-08818 |
| Citation | 891 N.Y.S.2d 448,68 A.D.3d 905,2009 NY Slip Op 9412 |
| Parties | MARIUSZ BAGINSKI et al., Plaintiffs, v. QUEEN GRAND REALTY, LLC, et al., Appellants, et al., Defendant, and MILCON CONSTRUCTION CORP., Defendant and Third-Party Plaintiff-Respondent. MACRO CONTRACTION CORP., Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is modified, on the law, (1) by deleting the provisions thereof denying those branches of the appellants' cross motion which were for leave to amend their answer to assert a cause of action for contractual indemnification on behalf of the defendant Queen Grand Realty, LLC, against the second third-party defendant, to deem the proposed amended answer containing that cause of action served and filed nunc pro tunc, and for summary judgment on that proposed cause of action, and substituting therefor a provision granting those branches of the cross motion, and (2) by deleting the provision thereof granting that branch of the cross motion of the second third-party defendant which was for summary judgment dismissing the proposed cause of action for contractual indemnification asserted by the defendant Queen Grand Realty, LLC, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
On January 11, 2005 the plaintiff Mariusz Baginski (hereinafter the plaintiff) was injured while working as an asbestos remover on a construction project in a Queens warehouse. The plaintiff attempted to gain access to a space over an elevated scaffold by climbing onto a wooden plank, which broke under his feet and caused him to fall about 18 feet to the ground.
The plaintiff and his wife, suing derivatively, commenced this now consolidated action against, among others, the owner of the warehouse, Queen Grand Realty, LLC (hereinafter Queen), and Queen's affiliate and lessee, Manhattan Beer Distributors, LLC (hereinafter Manhattan) (hereinafter together the appellants), alleging, inter alia, common-law negligence and violations of the Labor Law.
Queen commenced a third-party action against Milcon Construction Corp. (hereinafter Milcon), the general contractor hired by Manhattan to renovate and repair the premises. Milcon commenced a second third-party action against Macro Contracting Corp. (hereinafter Macro), the plaintiff's employer and the subcontractor hired by Milcon under an annual subcontractor's agreement, which contained an indemnification provision at paragraph 15 thereof (hereinafter the indemnity provision).
The indemnity provision provided, inter alia, for Macro to "indemnify, and hold harmless, and...
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