DECISION & ORDER
In an action to recover damages for personal injuries, the defendants BJs Wholesale Club, Inc., and Daniel Land Co., LLC, appeal from an order of the Supreme Court, Suffolk County (William B. Rebolini, J.), dated April 17, 2018. The order, insofar as appealed from, denied that branch of the motion of those defendants which was for summary judgment on their cross claim against the defendant Big Als Landscaping, Inc., for contractual and common-law indemnification, and granted that branch of the motion of the defendant Big Als Landscaping, Inc., which was for summary judgment dismissing the cross claim against it for contractual and common-law indemnification.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In the evening hours of February 4, 2014, the plaintiff allegedly slipped and fell on black ice in the parking lot of a BJs Wholesale Club store as he was leaving the store and walking to his vehicle. He commenced this personal injury action against the defendants BJs Wholesale Club, Inc., and Daniel Land Co., LLC (hereinafter together the BJs defendants), the owners of the parking lot, and the defendant Big Als Landscaping, Inc. (hereinafter Big Als), the company that provided snow removal services at the subject parking lot. In their answer, the BJs defendants asserted a cross claim against Big Als for contractual and common-law indemnification.
Big Als moved, inter alia, for summary judgment dismissing the BJs defendants cross claim for contractual and common-law indemnification, and the BJs defendants moved, inter alia, for summary judgment on their cross claim for contractual and common-law indemnification. The BJs defendants argued that they did not owe a duty to the plaintiff to maintain the parking lot since Big Als was exclusively responsible for removing snow and ice from the parking lot, that they did not create the alleged dangerous condition or have notice of it, and that the parties snow removal service contract called for indemnification by Big Als. The Supreme Court, inter alia, granted that branch of Big Als motion which was for summary judgment dismissing the BJs defendants cross claim and denied that branch the BJs defendants motion which was for summary judgment on their cross claim. The BJs defendants appeal.
“The party seeking contractual indemnification must establish that it was free from negligence and that it may be held liable solely by virtue of statutory or vicarious liability” (Jardin v. A Very Special Place, Inc., 138 A.D.3d 927, 931, 30 N.Y.S.3d 270 [internal quotation marks omitted]; see Graziano v. Source Bldrs. & Consultants, LLC, 175 A.D.3d 1253, 1260, 109 N.Y.S.3d 115; Arriola v. City of New York, 128 A.D.3d 747, 748–749, 9 N.Y.S.3d 344). Likewise, “[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” (Hart v. Commack Hotel, LLC, 85 A.D.3d 1117, 1118–1119, 927 N.Y.S.2d 111 [internal quotation marks omitted]; see Allan v. DHL Express [USA], Inc., 99 A.D.3d 828, 832–833, 952 N.Y.S.2d 275).
Here, although the BJs defendants had hired Big Als to remove snow from the parking lot, the snow removal service contract, which included plowing and salting/sanding the parking lot, only required Big Als to perform snow removal services when the snow accumulation reached one inch in height. Otherwise, the contract provided that an authorized member of the BJs defendants was required to contact Big Als if they wanted Big Als services and there was less than one inch of snow. There was no snow storm on the date of the accident that would have required Big Als to automatically perform its snow removal services, and the plaintiff did not have any trouble walking from his vehicle in the parking lot to the store on the night of the accident. Big Als had plowed the parking lot the day before the plaintiffs accident and left by approximately 6:30 a.m. on the day of the accident. Notably, the contract did not require Big Als to constantly monitor and/or inspect the parking lot; it only required Big Als to remove snow from the parking lot when the accumulation exceeded one inch. The evidence established that Big Als had completed its obligation to plow and salt the parking lot on the morning of the accident and was not required to return. Employees of the BJs defendants also applied salt to the parking lot, and the store always kept salt available in the winter.
Thus, Big Als established, prima facie, that its performance or nonperformance of snow removal services did not cause the accident, and the BJs defendants failed to establish, prima facie, that they were not negligent with regard to the icy condition that allegedly caused the plaintiffs accident.
Accordingly, the Supreme Court properly denied that branch of the BJs defendants motion which was for summary judgment on their cross claim for contractual and common-law indemnification, and granted that branch of Big Als motion which was for summary judgment dismissing the BJs defendants cross claim for contractual and common-law indemnification.
RIVERA, J.P., HINDS–RADIX, DUFFY and BRATHWAITE NELSON, JJ., concur.