Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.; op 27 Misc 3d 1223[A], 2010 NY Slip Op 50861[U]), entered April 29, 2010. The order, insofar as appealed from as limited by the brief, granted the branch of a posttrial motion by defendants/third-party plaintiffs 140 Broadway, LLC and MSDW 140 Broadway Property, L.L.C. seeking indemnification from defendant/third-party defendant Schindler Elevator Corporation.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of the posttrial motion by defendants/third-party plaintiffs 140 Broadway, LLC and MSDW 140 Broadway Property, L.L.C. seeking indemnification from defendant/third-party defendant Schindler Elevator Corporation is denied.

Plaintiff, who worked as a porter in the building located at 140 Broadway, New York, NY, commenced this personal injury action against the building's owner, 140 Broadway, LLC and MSDW 140 Broadway Property, L.L.C. (collectively 140 Broadway), to recover damages for injuries he sustained, in October 2003, when he was a passenger in an elevator which suddenly dropped and abruptly stopped past his selected floor. 140 Broadway subsequently commenced a third-party action against Schindler Elevator Corporation (Schindler) for indemnification. Thereafter, plaintiff amended his complaint to add Schindler as a defendant.

Following the trial, the jury returned a verdict in plaintiff's favor. The jury determined that the subject elevator car was not reasonably safe; that 140 Broadway and Schindler were "negligent in the maintenance" of the elevator car; that the negligence of 140 Broadway and [*2]Schindler was a substantial factor in causing the accident; and that 140 Broadway and Schindler each were 50% responsible for the negligence. Thereafter, 140 Broadway moved, pursuant to CPLR 4044 (a), for, among other things, an order setting aside the jury verdict on the issue of liability or, in the alternative, an order directing that a judgment be entered in its favor as against Schindler on its claims for common-law and/or contractual indemnification. By order entered April 29, 2010 (27 Misc 3d 1223[A], 2010 NY Slip Op 50861[U]), the Civil Court, among other things, denied the branch of the motion by 140 Broadway seeking to set aside the verdict on the issue of liability, and granted the branch of the motion seeking indemnification.

On appeal, Schindler contends, among other things, that since the jury found that the active negligence of 140 Broadway constituted 50% of the negligence which caused plaintiff's injury, 140 Broadway is not entitled to receive common-law and/or contractual indemnification. In response, 140 Broadway states that as it has a nondelegable duty to maintain the subject elevator in a reasonably safe manner (see Rogers v Dorchester Assoc., 32 NY2d 553 [1973]), its liability was vicarious and, thus, it was entitled to receive common-law indemnification from Schindler and, pursuant to the maintenance contract with Schindler, it was entitled to contractual indemnification.

Common-law, or implied, indemnification, permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party (see D'Ambrosio v City of New York, 55 NY2d 454, 460-461 [1982]; McDermott v City of New York, 50 NY2d 211, 217 [1980]; Baron v Grant, 48 AD3d 608, 609 [2008]). Since vicarious liability without actual fault on the part of the proposed indemnitee is a predicate for common-law indemnity, a party who participated to some degree in the wrongdoing cannot receive the benefit of the doctrine (see Tiffany at Westbury Condominium v Marelli Dev. Corp., 40 AD3d 1073, 1077 [2007]; Great Am. Ins. Co. v Canandaigua Natl. Bank & Trust Co., 23 AD3d 1025, 1028 [2005]). Likewise, a "party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (Cava Constr. Co., Inc. v. Gealtec Remodeling Corp., 58 AD3d 660, 662 [2009]; see also General Obligations Law § 5-322.1; Ventimiglia v Thatch, Ripley & Co., LLC, 96 AD3d 1043, 1047-1048 [2012]).

It is uncontroverted that 140 Broadway and Schindler were parties to a contract whereby Schindler had the responsibility to maintain the elevators in the building, for which Schindler was to be paid over $25,000 per month. The contract specifically provided that:

"The contractor agrees to defend, indemnify and hold harmless the owner, its agents, partners and employees against any and all liability, including legal costs and expenses, on account of death or injury to any person or damage to property, to the extent such liability arises out of the negligence of the contractor in the performance of this contract."

Although 140 Broadway was aggrieved by so much of the Civil Court's April 23, 2010 order as denied the branch of its motion seeking to set aside the jury verdict, and filed a notice of appeal therefrom, it did not perfect that appeal and its appeal was dismissed by decision and order of this court dated April 15, 2013. Thus, there is now an unchallenged jury finding that there was negligence on the part of 140 Broadway and that 140 Broadway was responsible for [*3]50% of the negligence which caused plaintiff's injuries. As the liability of 140 Broadway was not merely vicarious, 140 Broadway was not entitled to receive either common-law indemnification (see Tiffany at Westbury Condominium v Marelli Dev. Corp., 40 AD3d at 1077; Great Am. Ins. Co. v Canandaigua Natl. Bank & Trust Co., 23 AD3d at 1028) or contractual indemnification from Schindler (see General Obligations Law § 5-322.1; Ventimiglia v Thatch, Ripley & Co., LLC, 96 AD3d at 1047-1048; Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d at 662).

Accordingly, the order, insofar as appealed from, is reversed and the branch of the motion by 140 Broadway for indemnification from Schindler is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 18, 2013