7549. JOHN CAHN, plf-res, v. WARD TRUCKING, INC. def-res, J.T. FALK & COMPANY, INC., Defendant-res-ap, 460 PARK AVENUE SOUTH ASSOCIATES, LLC, def — J.T. FALK & COMPANY, LLC, THIRD-PARTY PLAINTIFF-RESPONDENT-ap — v. CHEMTREAT, INC., THIRD-PARTY DEFENDANTAPPELLANT-res — J.T. FALK & COMPANY, LLC, SECOND THIRD-PARTY PLAINTIFF-res-ap, v. ATLANTIC COASTAL TRUCKING, INC. SECOND THIRD-PARTY DEFENDANTS-res — [AND OTHER ACTIONS] Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant-res — Ahmuty, Demers & McManus, Albertson, (Glenn A. Kaminska of counsel), res-res — Pollack, Pollack, Isaac & DeCicco, New York (Michael H. Zhu of counsel), for John Cahn, res — Downing & Peck, P.C., New York (Brian E. Gunther of counsel), for Ward Trucking, Inc., res — Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Debra A. Adler of counsel), for R.C. Dolner, LLC, res — Law Office of James J. Toomey, New York (Evy L. Kazanzky of counsel), for Taconic Management Company, LLC and 450 Park Avenue South Associates LLC., res — Quirk and Bakalor, P.C., New York (Debra E. Seidman of counsel), for Atlantic Coastal Trucking, Inc. and Triangle Trucking, res — Order, Supreme Court, New York County (Paul Wooten, J.), entered February 16, 2011, which, to the extent appealed from, denied thirdparty defendant Chemtreat’s motion for summary judgment dismissing the third-party complaint and all cross claims against it, and denied defendant/third-party plaintiff/second third-party plaintiff J.T. Falk’s motion for summary judgment dismissing the complaint against it and for summary judgment on its claims for contractual and common-law indemnification against Chemtreat, and for common-law indemnification against Ward Trucking, Atlantic, Triangle and Bermudez, unanimously modified, on the law, to grant Chemtreat’s motion, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the third-party complaint and all cross claims against Chemtreat.
This is an action to recover damages for personal injuries sustained by plaintiff when he was struck by a barrel (or drum) of cleaning chemicals that fell off of a hand truck in the lobby of a building owned by defendant 450 Park, where plaintiff worked. Third-party defendant Chemtreat, the vendor of the chemicals, which allegedly failed to pack the barrels properly for delivery, was entitled to summary judgment. The claims for common-law indemnification against Chemtreat should have been dismissed, as the record shows that Chemtreat was not actively at fault in bringing about plaintiff’s injury (see McCarthy v. Turner Constr., Inc., 17 NY3d 369, 375 [2011]). Indeed, it is undisputed that the barrels were unpacked by the independent trucking contractors who delivered them, and that the barrel that hit plaintiff fell after the trucking contractors rocked the hand truck during delivery. Chemtreat also owed no duty of care to plaintiff, who was a third party to the vending contract between Chemtreat and Falk (see Espinal v. Melville Snow Contrs., 98 NY2d 136, 140-141 [2002]).
