Ordered that the cross appeal by the defendant Maspeth Supply Company, LLC, is dismissed as abandoned ( see 22 NYCRR 670.8 [e] [1]); and it is further,
Ordered that the order is affirmed insofar as appealed from by the defendant third-party plaintiff; and it is further,
Ordered that one bill of costs is awarded to the third-party defendant payable by the defendant third-party plaintiff.
The plaintiff allegedly was injured when she tripped over a pothole. She commenced this action seeking damages for personal injuries against, among others, Bay Crane Service, Inc. (hereinafter Bay Crane). Bay Crane then initiated a third-party action seeking, among other things, a defense and indemnification from Northeast Services, Inc. (hereinafter Northeast). Bay Crane had rented a crane to Northeast that had been used in the general vicinity of where the pothole was located, although not on the same street.
The rental agreement between Bay Crane and Northeast included an indemnification clause. The plain terms of the indemnification clause provide that Northeast would be required to defend and indemnify Bay Crane for any claims "occasioned by the operation, handling or transportation of this equipment during the rental period."
The Supreme Court properly determined that the indemnification clause did not require Northeast to provide a defense and indemnification under the circumstances presented here ( see Sievert v Morlef Holding Co., 241 AD2d 445). The record showed, as a matter of law, that the plaintiff's injuries were not occasioned by Northeast's use of this equipment, and as such, the indemnification clause was never triggered ( see Luby v Rotterdam Sq., L.P., 47 AD3d 1053; Fuller-Mosley v Union Theol. Seminary, 47 AD3d 487; Loiek v 1133 Fifth Ave. Corp., 46 AD3d 766).