Campbell v Mount Sinai Hosp. (2005 NY Slip Op 51733(U))

Campbell v Mount Sinai Hosp.

2005 NY Slip Op 51733(U) [9 Misc 3d 137(A)]

Decided on October 26, 2005

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Gerald Campbell, Plaintiff-Respondent, NY County Clerk's No. 570170/05 THE

against

Mount Sinai Hospital and MORSE DIESEL INTERNATIONAL, INC.,Calendar No. 05-122 Defendants-Appellants, YORK INTERNATIONAL CORPORATION, d/b/a YORK HEATING AND AIR CONDITIONING, Defendant-Respondent. —-X

Defendants, as limited by their brief, appeal from that portion of a judgment of the Civil Court, New York County, entered September 26, 2002 (Debra R. Samuels, J.), which denied their post-trial motion for common law indemnification.

Judgment entered September 26, 2002 (Debra R. Samuels, J.) affirmed, with $25 costs.

Plaintiff, a welder employed by third-party defendant Dualstar Technologies Corp, was injured in an explosion while he was using a torch to install air conditioning units during a renovation project at defendant Mount Sinai Hospital. The units were manufactured by defendant [*2]York International Corporation. Plaintiff commenced this action against Mount Sinai and defendant Morse Diesel International, Inc., the construction manager, alleging, inter alia, a violation of Labor Law § 241(6), and against York for common law negligence.

After trial, the jury found Mount Sinai and Morse Diesel liable under Labor Law § 241(6), and York "not negligent" in the occurrence of the accident.
The trial court properly denied Mount Sinai's and Morse Diesel's post-trial motion for common-law indemnification since the record does not establish that York was negligent. In addition to requiring proof of their freedom from negligence, defendants also had to prove that York, the proposed indemnitor, was guilty of some negligence that contributed to the causation of plaintiff's accident (see Priestly v. Montefiore Medical Center, 10 AD3d 493 [2004]; Correia v. Professional Data Management, 259 AD2d 60, 65 [1999]). We note that based upon the separate theories of liability presented at trial, the jury reasonably could conclude that the accident was caused by the negligence of plaintiff's employer Dualstar, and, in any event, defendants do not challenge the verdict on appeal.

Defendants' implied warranty indemnity claim is improperly raised for the first time on appeal (see Soho Plaza Nationwide Mut. Ins. Co., 309 AD2d 504 [2003]). Were we to consider this claim, we would find it unavailing since contrary to their contention, defendants failed to "show both the existence and breach of the warranty and that the breach was the proximate cause of plaintiff's damages" (Bellevue South Associates v HRH Construction Corporation, 78 NY2d 282, 298 [1991]).

This constitutes the decision and order of the court.
I concur I concurI concur
Decision Date: October 26, 2005