Perez Juarez v Rye Depot Plaza, LLC
2016 NY Slip Op 04363 [140 AD3d 464]
June 7, 2016
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 3, 2016

 Daniel Perez Juarez, Plaintiff,
Rye Depot Plaza, LLC, et al., Defendants. Rye Depot Plaza, LLC, et al., Third-Party Plaintiffs-Appellants, v GFX Site Development, Inc., Doing Business as Groundseffects Landscaping, Inc., Third-Party Defendant-Respondent.

Baxter Smith & Shapiro, P.C., White Plains (Sim R. Shapiro of counsel), for appellants.

Gorton & Gorton, LLP, Mineola (John T. Gorton of counsel), for respondent.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered April 1, 2015, which denied defendants/third-party plaintiffs' (Rye and Imajan) motion for summary judgment on their contractual indemnification claim against third-party defendant (GFX), unanimously affirmed, with costs.

Rye and Imajan failed to establish prima facie either that GFX executed the indemnification agreement before plaintiff's accident or that the agreement was intended to be retroactive (see Mikulski v Adam R. West, Inc., 78 AD3d 910 [2d Dept 2010]). Neither Rye's principal nor GFX's principal recalled when the undated agreement was signed. Nor does the conclusory affidavit by the controller of Imajan's manager establish the date on which the agreement was signed. As to retroactivity, the agreement contains no "express words or necessary implication [by which] it clearly appears to be the parties' intention to include past obligations" (see Mikulski, 78 AD3d at 911 [internal quotation marks omitted]). Concur—Friedman, J.P., Renwick, Andrias, Gische and Webber, JJ. [Prior Case History: 2015 NY Slip Op 30574(U).]