State v. Syracuse Rigging Co. Inc.

• Decision Date: 16 April 1998
• Docket Number: No. 2,No. 1,1,2
• Citation: 671 N.Y.S.2d 801,249 A.D.2d 758
• Parties: , 1998 N.Y. Slip Op. 3646 STATE of New York, Appellant, v. SYRACUSE RIGGING COMPANY INC., Respondent. (Action) STATE of New York, Appellant, v. WATERTOWN CONSTRUCTION COMPANY INC., Respondent. (Action)
• Court: New York Supreme Court — Appellate Division

Page 801

671 N.Y.S.2d 801

249 A.D.2d 758, 1998 N.Y. Slip Op. 3646

STATE of New York, Appellant, v. SYRACUSE RIGGING COMPANY INC., Respondent. (Action No. 1.)

STATE of New York, Appellant, v. WATERTOWN CONSTRUCTION COMPANY INC., Respondent. (Action No. 2.)

Supreme Court, Appellate Division,

Third Department.

April 16, 1998.

Smith, Sovik, Kendrick & Sugnet (Philip P. Whaling, of counsel), Syracuse, for appellant.

Levene, Gouldin & Thompson (David F. McCarthy, of counsel), Binghamton, for Syracuse Rigging Company Inc., respondent.

O'Connor, Gacioch & Pope (Hugh B. Leonard, of counsel), Binghamton, for Watertown Construction Company Inc., respondent.

Before CARDONA, P.J., and MIKOLL, MERCURE, CREW and YESAWICH, JJ.

CARDONA, Presiding Justice.

Appeals (1) from an order of the Supreme Court (Coutant, J.), entered March 24, 1997 in Broome County, which, inter alia, granted defendants' motions for summary judgment dismissing the complaints in action Nos. 1 and 2, and (2) from an order of said court, entered July 9, 1997 in Broome County, which denied plaintiff's motion for reconsideration.

This appeal arises out of an accident that occurred when Rollo Reed, an ironworker, fell from scaffolding while working on a bridge owned by plaintiff located in the City of Binghamton, Broome County. Plaintiff had contracted with defendant Watertown Construction Company Inc. to repair the bridge. Watertown, in turn, subcontracted with defendant Syracuse Rigging Company Inc. to perform certain iron work, including the installation of new bridge girders. Reed was employed by Syracuse at the time of the accident. Thereafter, Reed and his wife commenced an action against plaintiff in the Court of Claims alleging causes of action for negligence and violations of various provisions of the Labor Law.

Plaintiff, in turn, commenced these actions against defendants in Supreme Court seeking, inter alia, indemnification in the Reeds' Court of Claims' action. The Reeds subsequently moved for summary judgment against plaintiff on their Labor Law § 240(1) cause of action. Prior to a decision on that motion, plaintiff moved for summary judgment on its indemnification claims and to consolidate its actions against defendants. Defendants, in turn, cross-moved for summary judgment dismissing plaintiff's indemnification claims. Supreme Court, inter alia, granted defendants' cross motions and dismissed the indemnification claims as premature. Following the Court of Claims' grant of the Reeds' motion for summary judgment on their Labor Law § 240(1) cause of action, plaintiff moved for reconsideration of the prior motion, which Supreme Court denied. Plaintiff appeals from the orders denying summary judgment and its motion for reconsideration. ¹

We find no merit to plaintiff's claim that Supreme Court should have granted a conditional judgment of indemnification in its actions against defendants. As a general rule, a claim for indemnification does not accrue until payment has been made by the party seeking indemnification (see, McDermott v. City of New York, 50 N.Y.2d 211, 216, 428 N.Y.S.2d 643, 406 N.E.2d 460; Alside v. Spancrete Northeast, 84 A.D.2d 616, 617, 444 N.Y.S.2d 241; Bay Ridge Air Rights v. State of New York, 57 A.D.2d 237, 238, 394 N.Y.S.2d 464, aff'd 44 N.Y.2d 49, 404 N.Y.S.2d 73, 375 N.E.2d 29). Departure from this rule may be warranted where the interests of justice and judicial economy so dictate (see, State of New York v. Ehasz, 80 A.D.2d 671, 672, 436 N.Y.S.2d 387; Bay Ridge Air Rights v. State of New York, supra at 239, 394 N.Y.S.2d 464). In such an instance, the issuance of a conditional judgment of indemnification, pending the outcome of the main action, is appropriate "in order that the indemnitee obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed" (O'Brien v. Key Bank, 223 A.D.2d 830, 831, 636 N.Y.S.2d 182; see, e.g., 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, 512 N.Y.S.2d 552).

In this case, it is undisputed that plaintiff has not made payment to the Reeds on the judgment obtained in connection with their Labor Law § 240(1) cause of action. Therefore, plaintiff's indemnification claims are clearly premature and we find no reason to depart from the general rule under the circumstances presented herein....