Defendant Labiner, as limited by his brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), entered August 2, 2007, which denied his motion for conditional summary judgment on his indemnification cross claim against defendant Xue.

Per Curiam.

Order (Nelida Malave-Gonzalez, J.), entered August 2, 2007, reversed, with $10 costs, and defendant Labiner's motion for conditional summary judgment on his cross claim for indemnification against defendant Xue is granted.

In this dental malpractice action, defendant Labiner established entitlement to conditional summary judgment on his cross claim for contractual indemnification against defendant Xue, a fellow dentist employed by Labiner. Under the express terms of the governing employment agreement, Dr. Xue agreed to indemnify Dr. Labiner for all injuries "arising out of or based on" Dr. Xue's conduct. Plaintiff testified at her deposition that Dr. Labiner never examined or treated her, and in opposing summary judgment, neither Dr. Xue nor plaintiff submitted any evidence showing that plaintiff's injuries resulted from Dr. Labiner's negligence. Thus, in the absence of any showing of actual negligence on the part of Dr. Labiner, his liability, if any, will be vicarious (see Hill v St Clare's Hosp., 67 NY2d 72 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 21, 2009