O'Brien v. Key Bank N.A.
| Decision Date | 11 January 1996 |
| Citation | 223 A.D.2d 830,636 N.Y.S.2d 182 |
| Parties | Margaret O'BRIEN et al., Plaintiffs, v. KEY BANK N.A. et al., Defendants, and American Telephone and Telegraph Company, Defendant and Third-Party Plaintiff-Respondent; Comstock Communications Inc., Third-Party Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Moran & Pronti (Jay A. Smith, of counsel), Clifton Park, for third-party defendant-appellant.
Stockton, Barker & Mead (Robert S. Stockton, of counsel), Albany, for defendant and third-party plaintiff-respondent.
Before MIKOLL, J.P., and CREW, PETERS and SPAIN, JJ.
Appeal from an order of the Supreme Court (Harris, J.), entered October 5, 1994 in Albany County, which granted third-party plaintiff's motion for summary judgment on its third-party complaint.
In 1986, defendant American Telephone and Telegraph Company (hereinafter AT & T) entered into a contract with third-party defendant Comstock Communications Inc. in which Comstock agreed to install underground conduit and manholes in and around Norton Street in the City of Albany and to restore the sidewalks disturbed during such installation. In May 1989, following completion of the aforesaid contract, plaintiff Margaret O'Brien, after exiting defendant Key Bank N.A.'s building and while crossing the sidewalk on Norton Street, fell and sustained certain personal injuries. As a consequence, plaintiff and her husband, derivatively, commenced suit against AT & T, Key Bank and the City of Albany, claiming, inter alia, that AT & T had failed to properly resurface the Norton Street area, which failure caused plaintiff's fall. AT & T thereafter commenced a third-party action against Comstock seeking contractual and common-law indemnification. Following joinder of issue, AT & T moved for summary judgment against Comstock on the ground that the indemnification clause in its contract with Comstock, as well as common-law principles, obligated Comstock to defend and indemnify it for any judgment obtained by plaintiffs. Supreme Court granted the motion, and Comstock now appeals.
Initially, we reject Comstock's contention that Supreme Court's determination was premature. It is well established that a court may render a conditional judgment on the issue of indemnity, pending determination of the primary action, in order that the indemnitee obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed (see, McCabe v. Queensboro Farm Prods., 22 N.Y.2d 204, 208, 292 N.Y.S.2d 400, 239 N.E.2d 340; Schwalm v. County of Monroe, 158 A.D.2d 994, 550 N.Y.S.2d 970; Blair v. County of Albany, 127 A.D.2d 950, 951, 512 N.Y.S.2d 552). Neverthe...
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