EMILIO CUOMO, PLAINTIFF, v. 53RD AND 2ND ASSOCIATES, LLC def

11149. EMILIO CUOMO, PLAINTIFF, v. 53RD AND 2ND ASSOCIATES, LLC def — 53RD & 2ND ASSOCIATES, LLC Third-Party plf-ap, v. SAGE ELECTRICAL CONTRACTING, Third-Party def-res — London Fischer LLP, New York (Gregg D. Minkin of counsel), for ap — O’Connor, O’Connor, Hintz & Deveney, LLP, Melville (Kevin Murtagh of counsel), for res — Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered May 8, 2013, which denied third-party plaintiffs’ motion for summary judgment declaring their entitlement to contractual defense and indemnification from third-party defendant (Sage) in the underlying personal injury action, unanimously modified, on the law, to grant the motion to the extent of declaring that 53rd and 2nd Associates, LLC (the owner) is entitled to indemnification and to the present payment of its defense costs, and that Plaza Construction Corp. is entitled to conditional indemnification to the extent it is found free from negligence in the underlying accident, and otherwise affirmed, without costs.

As Sage concedes, there is no issue of fact as to the owner’s active culpability in the underlying accident, and therefore the owner is entitled to summary judgment on its claim for contractual indemnification (see Fiorentino v. Atlas Park LLC, 95 AD3d 424, 426-427 [1st Dept 2012]; Macedo v. J.D. Posillico, Inc., 68 AD3d 508, 510-11 [1st Dept 2009]).