Defendant/third-party plaintiff TDX Construction Corporation ("TDX") and defendant/third-party plaintiff Gilbane Building Company ("GBC") move for an order, pursuant to CPLR 2221, granting them leave to reargue their prior motion, which, inter alia, sought partial summary judgment on the issues of common-law and contractual indemnity against defendant/third-party defendant Kline Iron & Steel Co., Inc. ("Kline") and third-party defendant American Steel Erectors, Inc. ("ASE").

Defendant New York Health and Hospitals Corporation ("HHC") cross-moves for an order, pursuant to CPLR 2221, granting it leave to reargue its prior motion, which, inter alia, sought partial summary judgment on the issues of common-law and contractual indemnity against defendants Gilbane/TDX Joint Venture ("JV"), TDX, GBC and Kline.

After discovery, HHC moved for summary judgment. TDX and GBC cross-moved for [*2]summary judgment shortly thereafter.

The motion and cross motion were granted by order of this court dated July 25, 2007. The court dismissed plaintiff's causes of action that alleged either common-law negligence or violations of §§ 200, 240 (1) and 241 (6) of the Labor Law.

In its Order, the Court declined to address the issue of indemnity for losses sustained as the result of the underlying claim as it was dismissed as a matter of law. Movants now seek leave to reargue their prior motions for summary judgment, insofar as they concern the issue of indemnity for defending the underlying claim.

A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be granted only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 26 [1992]).

The court grants leave to reargue, as it now considers the contractual claims for indemnification for costs of defending the action, which previously were not decided as moot upon dismissal of the underlying action.

In the July 25, 2007 Order, this Court noted that "[p]laintiff's work was exclusively supervised and controlled by" non-party Vanguard Equipment Rental (Vangaurd), Plaintiff's employer, thereby finding only Vanguard to be subject to liability under common-law indemnity since a contractor is only subject to common-law liability if it supervises or controls the activity which resulted in the injury (Toledo v Long Is. Jewish Med.Ctr., 309 AD2d 921, 922 [2003]; see also Russin v Picciano & Son, 54 NY2d 311 [1981]; Wysocki v Balalis, 290 AD2d 504, 505 [2002]; cf. Hernandez v Two East End Ave. Apt. Corp., 271 AD2d 570, 571 [2000]; Rodriguez v Metropolitan Life Ins. Co., 234 AD2d 156 [1996]; Terranova v City of New York 197 AD2d 402 [1993]). Since plaintiff's injury was the result of activity exclusively controlled by Vanguard, none of the present movants are entitled to partial summary judgment on the issue of common-law indemnity.

Upon re-argument, movants have, however, demonstrated the Court erred in holding that the claims for contractual indemnity were moot. Movants have also demontsrated that they are entitled to summary judgment on the claim of contractual indemnity as a matter of law.

TDX Motion

Defendant/third-party plaintiffs TDX Construction Corporation and Gilbane Building Company state they are entitled to indemnification by both Kline (the prime contractor) and American Steel (a sub-contractor). [*3]

In support of their claim against Kline they assert the express provisions of the DASNY-KLINE contract broadly indemnifies not only DASNY but also TDX and GBC for the assumption of the defense and losses associated with damage or injury resulting from execution of the work.

Section 14.05(A)(3) of the contract between DASNY and Kline Iron & Steel Corp. states, in pertinent part,

"The Contractor agrees to assume, and pay on behalf of the Owner, the Client, and the Owner's Representative, Construction Manager, servants and employees, the defense of any action at law or equity which may be brought against the Owner, the Client and the Owner's Representative, Construction Manager, servants and employees".

Kline does not oppose the motion.

TDX and GBC further assert that in the contract between Kline and American Steel, American Steel, in paragraph 6(e), agrees to indemnify Kline and "parties listed on page 1" which includes, among others, Gilbane/TDX as the construction manager. That section reads, in pertinent part, "Subcontractor agrees that it will assume and pay all costs of defending said claims, including but not limited to, all attorney's fees and expenses involved in the defense of any such demand or action. Further, Subcontrator agrees to compensate Kline, and/or parties as listed on page 1 of this Subcontract for any and all attorney's fees, expenses and costs incurred in defending any such demand or action should the Subcontractor fail to do so.

American Steel, subcontractor, does not oppose the motion.Absent evidence contesting the validity of the contract and the applicability of the provision, the plain language of the contract between DASNY and Kline support TDX and GBC's position that they are entitled to contractual indemnification for defense related costs for the underlying claim.

HHC Cross Motion

In addition, Defendant New York Health and Hospitals Corporation, (hereinafter "HHC"), cross moved for leave to reargue their prior motion for indemnification for the costs of the defense of the underlying action from TDX and Kline. HHC cites the contract between Kline and American Steel, in which American Steel, in paragraph 6(e), agrees to indemnify Kline and "parties listed on page 1" which includes, among others, Kings County Hospital and DASNY. They assert that HHC, which operates Kings County Hospital and is owned by DASNY, is thereby included in the indemnification provision of the Kline/American Steel contract.

As pointed out by TDX in its opposing papers, HHC does not adduce any contract with TDX or Gilbane in which they agreed to indemnify HHC. Again, American Steel, subcontractor, does not oppose the motion

Movants have demonstrated they are entitled to summary judgment for contractual indemnification against Kline but not against the TDX/Gilbane Defendants.

WHEREFORE, the Court grants Defendants TDX Construction Corporation and Gilbane Building Company's motion for re-argument, granting them summary judgment on their claim for contractual indemnification against third-party defendants Kline Iron & Steel Co., Inc. and American Steel Erectors, Inc., and further grants Defendant HHC's motion for re-argument, granting them summary judgment on their claim for contractual indemnification against third-party Defendants Kline Iron & Steel Co., Inc. [*4]

This shall constitute the decision and order of this Court.

E N T E R,

_______________________

J. S. C.