NYSCEF docs. 22-33 were read and considered in deciding this motion.

Defendant, Jose Padilla ("Padilla"), moves for an order compelling the defendant, Arcomi Construction, Inc. ("Arcomi"), to assume his defense and indemnification in this action, pursuant to the "Building Contract" dated November 22, 2021. The motion is opposed.

Defendant Padilla is the owner of the undeveloped property located at 57 Oak Avenue in Hempstead. Padilla contracted with Arcomi to construct a one-family residence at that location. This action arises out of an accident that allegedly occurred at that construction site while the plaintiff was working for a sub-contractor of Arcomi.

This action was commenced by the filing of a summons and verified complaint on April 19, 2022. Issue was joined by Arcomi by the filing of its Verified Answer on June 2, 2022 and by Padilla by the filing of his Verified Answer on June 22, 2022. In his answer, Padilla asserted a cross claim against Arcomi alleging that he is entitled to a defense and contractual indemnification from Arcomi pursuant to the Building Contract between the parties dated November 22, 2021.

Pursuant to Paragraph 23 of the Building Contract:

Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, the contractor (ARCOMI CONSTRUCTION, INC.) agrees to indemnify and hold harmless the other Party (JOSE PADILLA) ... against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective directors, [*2]shareholders, affiliates, officers, agents, employees and permitted successors and assigned that occurs in connection with this Contract. This indemnification will survive the termination of this Contract.

In support of his motion, counsel for Padilla submits that, on August 12, 2022, a letter was sent to Arcomi's counsel demanding that his client and/or its insurance carrier assume his defense and indemnification in this case. Counsel submits that, to date, there has been no response to that demand. Additionally, counsel points out that on December 21, 2022, plaintiff served his Verified Bill of Particulars, and on May 17, 2023, a Preliminary Conference Order was issued. Counsel notes that the deposition of the plaintiff was commenced on August 30, 2023, but was not finished and has not yet been completed. The depositions of the defendants have also not yet been held. Padilla's counsel adds that, on October 3, 2023, Padilla filed a discovery response indicating that he was not insured at the time of this alleged accident. Counsel notes that pursuant to the Building Contract, specifically Paragraph 23 therein, Padilla is entitled a defense and indemnification for plaintiff's claims form Arcomi. He, thus, moves herein that an order be issued compelling Arcomi to do so, including an additional provision for the payment of reasonable fees and expenses incurred by Padilla to date in his defense.

In opposition, counsel for Arcomi, largely argues, on summary judgment principles, that in order to prevail on this motion seeking contractual indemnification, Padilla must first demonstrate that he is not negligent, which he has failed to do. Counsel for Arcomi notes that this is particularly true since the plaintiff does not allege mere vicarious liability under Labor Law 240 and or 241(6), but also active negligence on the part of Padilla as well as violations of Labor Law 200 both of which, counsel argues, would void the contractual indemnity clause per the General Obligations Law and other applicable case law.

It is noted at the outset that although cast as a motion to compel, the motion plainly does not seek a ruling in the context of discovery and disclosure (CPLR 3124). Indeed, the law is clear. "The method by which to redress for failure to comply with a discovery demand or request is via a motion to compel" (2 Modern New York Discovery § 29:1 [2d ed.]; Chamberlain, D'Amanda, Oppenheimer & Greenfield LLP v Wilson, 101 AD3d 1640 [4th Dept 2012]). Thus, Padilla's "motion to compel" is denied.

Additionally, this Court notes that, to the extent that Padilla is seeking a "declaration" that Arcomi is obligated to assume his defense and indemnification in this action, said application is also denied. Again, the law is settled. The court should not grant declaratory relief where it will result in the piecemeal resolution of the dispute (see, City of Rochester v Vanderlinde Electric Corp., 56 AD2d 185 [4th Dept1977]; see also, New York Public Interest Research Group, Inc. v Carey, 42 NY2d 527 [1977]; Smith v Western Union Tel. Co., 276 AD 210 [1st Dept 1949], affd. 302 NY 683 [1951]). Here, making a declaration that Arcomi is or is not obligated to assume Padilla's defense and indemnification in this action would, in fact, result in a piecemeal resolution of the matter at hand. Thus, in the exercise of its discretion, this Court declines to make such a finding.

Finally, Padilla's application to "compel" Arcomi to assume his defense and indemnification in this action is also denied on substantive legal principles. Once again, the law is settled. "[A] party seeking contractual indemnity must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified [*3]therefore" (Cava Constr Co Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2d Dept 2009]; see also, General Obligations Law §5-322.1; Rodriguez v Tribeca 105 LLC, 93 AD3d 655 [2d Dept 2012]; Meadowbrook Pointe Development Corp. v F&G Concrete & Brick Industry, Inc., 214 AD3d 965 [2d Dept 2023]). Here, the deposition of the plaintiff remains incomplete, no deposition of the defendants has been taken, and indeed, no affidavit from Padilla or any proof in admissible form has been offered as to Padilla's possible role, if any, in the alleged loss. In the absence of such a showing, the motion is denied.

Accordingly, it is hereby,

ORDERED, that the defendant, Jose Padilla's, motion is DENIED in its entirety.

Any applications not specifically addressed are herewith DENIED.

The parties' remaining contentions have been considered and do not warrant discussion.

This constitutes the decision and order of this Court.