JDS Constr. Group LLC v US Crane & Rigging LLC, 2024 NY Slip Op 00964 [224 AD3d 582]

February 27, 2024

Appellate Division, First Department

[*1]

JDS Construction Group LLC et al., Plaintiffs, and 111 West 57th Holdings LLC, Appellant,

v

US Crane & Rigging LLC, Respondent, et al., Defendant. (And a Third-Party Action.)

Cohen Ziffer Frenchman & McKenna LLP, New York (Andrew N. Bourne of counsel), for appellant.

Goldberg Segalla LLP, Buffalo (Meghan M. Brown of counsel), for respondent.

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered August 14, 2023, which, to the extent appealed from as limited by the briefs, granted that portion of defendant US Crane and Rigging’s and defendant/third-party plaintiff NYC Crane Hoist Operations, LLC’s (defendants) motions for summary judgment dismissing plaintiff 111 West 57th Holdings LLC’s (Holdings) claims against them, unanimously affirmed, without costs.

The court properly dismissed Holdings’ breach of contract claims based on contractual indemnification, as Holdings was not a party to the contract between defendants and the subcontractor at the construction site where the accident occurred, nor was Holdings an intended third-party beneficiary under the contract ( see Gotham Partners, L.P. v High Riv. Ltd. Partnership , 76 AD3d 203 , 206 [1st Dept 2010], lv denied 17 NY3d 713 [2011]). In any event, that provision would be inapplicable to Holdings’ direct claims. The court also properly dismissed Holdings’ negligence claim, as defendants did not owe it a duty of care ( see 532 Madison Ave. Gourmet Foods v Finlandia Ctr. , 96 NY2d 280, 288-292 [2001]). Concur—Kern, J.P., Gesmer, Shulman, Rodriguez, Rosado, JJ..