Taddeo v. 15 West 72nd Street Owners Corp. , 701 N.Y.S.2d 643 ( 2000 )

—In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals from an order of the Supreme Court, Kings County (Held, J.), dated November 17, 1998, which denied its motion for summary judgment on its third-party complaint for common-law indemnification.

Ordered that the order is reversed, on the law, and the motion is granted conditionally in the event of the entry of a judgment awarding damages in favor of the plaintiff and against the defendant third-party plaintiff.

The Supreme Court erred in denying the motion of the defendant third-party plaintiff 15 West 72nd Street Owners Corp. (hereinafter 15 West), for summary judgment on the third-party complaint for common-law indemnification against Joyce Contracting Co. (hereinafter Joyce). After 15 West made out a prima facie case that it was entitled to summary judgment because it did not direct or control the plaintiffs work, Joyce failed to raise a triable issue of fact (see, Rivera v D'Alessandro, 248 AD2d 522; Lopez v 36-2nd J Corp., 211 AD2d 667; Richardson v Matarese, 206 AD2d 354). Although liability has not been determined in this case, the motion for summary judgment on the third-party complaint for common-law indemnification is not premature and may be granted conditionally (see, Clark v 345 E. 52nd St. Owners, 245 AD2d 410; Rice v PCM Dev. Agency Co., 230 AD2d 898). Bracken, J. P., Thompson, Sullivan and Krausman, JJ., concur.