Indemnity - When Claim for Indemnification Available - Court Finding That Indemnifying Party was Not Negligent

Order, Supreme Court, New York County (James E. d'Auguste, J.), entered February 20, 2024, which, to the extent appealed from, denied defendant Cameron Remigio's motion for summary judgment dismissing the cross-claims against him asserted by defendants Churchill Owners Corp., Terra Holdings, LLC, and Rose Terra Management, LLC (Owner Defendants), unanimously modified, on the law, the motion granted to the extent of dismissing the first and second cross-claims, and otherwise affirmed, without costs.

The Owner Defendants' first cross-claim for contribution and indemnification due to Remigio's own negligence and second cross-claim for contractual indemnification pursuant to the alteration agreement should have been dismissed. Contrary to the Owner Defendants' contention, dismissing these cross-claims is not premature where no triable issues of fact exist as to Remigio's liability and thus his obligation to indemnify them (compare Iurato v City of New York, 18 AD3d 247, 248 [1st Dept 2005]). The motion court has already determined that Remigio was not negligent and dismissed the complaint as against him, an order from which the Owner Defendants did not appeal.

Remigio, however, does not raise a viable argument to warrant dismissing the Owner Defendants' third cross-claim against him for failure to procure insurance. Concur—Manzanet-Daniels, J.P., González, Shulman, Rodriguez, Pitt-Burke, JJ.