The present posture of this matter finds plaintiff having, on the eve of trial, settled his personal injury claim which stemmed from an accident that occurred on August 24, 2007 on Hurricane Road in the Town of Keene, Essex County. Defendant/third-party plaintiff County of [*2]Essex (hereinafter the County) contracted with third-party defendant Graymont Materials, Inc. (hereinafter Graymont) for the supply of asphalt to be used by the County in maintaining its roadways. Graymont, in turn, contracted with third-party defendant Beaudin Brothers Trucking (hereinafter Beaudin) to transport and deliver the asphalt. At the time plaintiff was an employee of Beaudin and operating his employer's tri-axle dump truck, hauling a load of asphalt from Graymont's quarry to a paving project being carried out by the County. Plaintiff sustained severe physical injuries, including damage to his brain and spinal cord.

The County commenced a third-party action against Graymont and Beaudin.^[FN1] As against Graymont the County sought contribution and contractual indemnification while it also sought contribution and indemnification from Beaudin in the event that plaintiff sustained a grave injury within the meaning of Workers' Compensation Law § 11.^[FN2] In its answer to the third party complaint, Graymont cross-claimed against Beaudin based upon theories of negligence and culpable conduct, seeking contractual indemnification and, or contribution. Beaudin, in answering the third-party complaint, cross-claimed against Graymont seeking common law indemnification because of Graymont's alleged "sole, active, and primary carelessness." The litigants in the third-party action have now been invited to engage in motion practice in order to assist the Court in defining how it shall proceed in these extant matters and, specifically, whether there shall be a factual determination required as the predicate to applying the indemnification clause in the County and Graymont contracts, and in consideration of Beaudin's common law indemnification claim. Graymont has also moved for summary judgment declaring Beaudin negligent as a matter of law. The County has not accepted the Court's invitation to join in this motion practice.

The County's contractual claim against Graymont and the latter's contractual claim against Beaudin are governed by the same rule: A contractual indemnification clause is not enforceable where there is active negligence by the indemnitee (see McKeighan v Vassar Coll., 53 AD3d 831, 833-834 [2008]). It has never been established, as a matter of law, that either the County's management at the construction site — or Graymont's role in the paving project — was free from negligence.

With respect to Beaudin's common law claim against Graymont, "[t]he principle of 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" (Genesee/Wyoming YMCA v Bovis Lend Lease LMB, Inc., 98 AD3d 1242, 1244 [2012], quoting 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80 [1999]; 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]). "Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine" (Genesee/Wyoming YMCA v Bovis Lend Lease LMB, Inc., 98 AD3d at 1244-1245 [internal [*3]quotation marks and citations omitted]). Accordingly, "[i]n order to establish a claim for common-law indemnification, a party must prove not only that [it was] not negligent, but also that the proposed indemnitor . . . was responsible for negligence that contributed to the accident or, in the absence of any negligence, had the authority to direct, supervise, and control the work giving rise to the injury" (Wahab v Agris & Brenner, LLC, 102 AD3d 672, 674 [2013], quoting Hart v Commack Hotel, LLC, 85 AD3d 1117, 1118-1119 [2011] [citation and internal quotation marks omitted]; see Hackert v Emmanuel Cong. United Church of Christ, 130 AD3d 1292, 1295 [2015]). Again, it has never been established as a matter of law that Beaudin's role in the paving project was free from negligence.

Turning now to the controversy at hand, the Appellate Division determined this Court erred in having previously dismissed the County's cross claim against Graymont and concluded the County was entitled to summary judgment on its contractual indemnification claim against Graymont (see 111 AD3d 1035, 1040 [2013]). The Appellate Division explained as follows:

"The indemnification clause expressly incorporated into the contract between Graymont and the County provides that the former shall defend, indemnify and hold harmless the County to the fullest extent allowed by law from and against any and all liability, suits, judgments, orders, causes of action, and claims . . . arising out of or in connection with [Graymont's] negligence and/or its performance or failure to perform this agreement.' Pursuant to the parties' agreement, Graymont was responsible for both furnishing the asphalt as well as delivering it to the county paving machines at the designated job site, and it is undisputed that the accident occurred during such delivery. Accordingly, plaintiff's claims here clearly arose out of or in connection with Graymont's performance of the agreement, and the County is therefore entitled to summary judgment on its contractual indemnification claim against Graymont" (id. at 1039-1040 [citations omitted]).

That Court, however, also recognized that this Court's denial of summary judgment to the County was proper insofar as "an issue of fact exists as to whether the alleged negligence of the County in permitting public traffic on Hurricane Road, while construction was ongoing, was a substantial factor in causing or exacerbating plaintiff's injuries." (id. at 1038).

Following the Appellate Division's decision, this Court permitted Graymont to reinstate its contractual indemnification claim against Beaudin (44 Misc 3d 1206[A], 2014 NY Slip Op 51038[U] [2014]), observing at the time the "tension between General Obligations Law § 5-322.1 and [this] award of contractual indemnification." (id. at *2, n 1). Upon further reflection, however, it does not appear that the Appellate Division was pronouncing a judgment that awarded the County indemnification for its own negligence, particularly when it identified the issue of fact concerning the County's potential negligence.

In this not dissimilar vein the indemnification clause between the County and Graymont still requires the former to demonstrate its freedom from the potential negligence described by the Appellate Division. To the extent Graymont argues that its own freedom from negligence has been established by this Court's Order of May 11, 2012, such argument is rejected. These are [*4]each unresolved issues of fact.

The contractual indemnification flowing from Beaudin to Graymont provides in relevant part:

"Beaudin shall indemnify, hold harmless and defend Graymont, its agents and employees from and against all claims, damages, losses or expenses including but not limited to attorneys' fees arising out of or resulting from the performance of the agreement, provided any such claim . . . (b) is caused in whole or in part by any act or omission or violation of statutory duty or regulation of Beaudin . . . or anyone directly or indirectly employed by it" (id. at *2).

Again, this Court has previously determined that "plaintiff's injuries, occurring on Hurricane Road, [arose] out of or result[ed] from the performance of the agreement' by Beaudin, which was to haul asphalt from Graymont's plant to various off-site paving projects" (id.) Additionally, the Appellate Division has already observed that an issue of fact exists as to whether there was a brake failure caused by inadequate maintenance of the truck or plaintiff's operation of the truck (see 111 AD3d at 1039). These also remain unresolved questions of fact.

Based upon the foregoing, it is

ORDERED AND ADJUDGED that issues of fact exist, first, as to whether the County was negligent in permitting public traffic on Hurricane Road while construction was ongoing and, second, as to whether such negligence was a substantial factor in causing or exacerbating plaintiff's injuries; and it is further

ORDERED AND ADJUDGED that issues of fact exist as to whether Graymont was negligent in the course of its role at the paving project and whether such negligence was a substantial factor in causing or exacerbating plaintiff's injuries; and is further

ORDERED AND ADJUDGED that issues of fact exist as to whether Beaudin was negligent in either maintenance of the truck or responsible vicariously for its employee's operation of the truck and whether such negligence was a substantial factor in causing or exacerbating plaintiff's injuries; and it is further

ORDERED that Graymont's motion for summary judgment as against Beaudin is denied; and it is further

ORDERED that all third party counsel are directed to appear on July ___, 2016 at ____ A.M. at the Warren County Courthouse for the purpose of scheduling a trial date at the Essex County Courthouse; and it is further

ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated January 8, 2016 and the submissions enumerated below. Counsel for Graymont is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.