The court properly granted plaintiff's cross motion for partial summary judgment on the issue of liability. It is evident that the affidavits in support of plaintiff's cross motion by plaintiff and her witness, Russell Beal, are both based on personal knowledge, not mere speculation or surmise (cf., S. J. Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342; DeSabato v. Soffes, 9 A.D.2d 297, 301). Defendants' contention that Beal failed expressly to state that he "saw" the events that he described was not presented to the motion court, and will not be considered for the first time on appeal since the issue could have been obviated by a supplemental submission by plaintiff in the motion court (see, First Intl. Bank of Israel, Ltd. v. Blankstein Son, Inc., 59 N.Y.2d 436, 447). In any event, it is evident from the circumstances set forth in the affidavit that Beal did, in fact, see the events described therein. Beal's status as plaintiff's roommate does not sufficiently establish that their interests are united. Indeed, defendants have raised no issue as to plaintiff's or Beal's credibility (compare, Vitiello v. Mayrich Constr. Corp., 255 A.D.2d 182). We note, moreover, that, even had plaintiff been the sole witness to the accident, summary judgment as to liability would still have been appropriate. Plaintiff in her affidavit made out a prima facie case of liability for negligence against defendants and defendants did not, in response thereto, come forward with evidence raising a triable issue (see, Klein v. City of New York, 89 N.Y.2d 833; see also, Franco v. Jemal, 280 A.D.2d 409). The affidavit of defendant Van Bulk Construction, Inc. employee, Steven Wiley, did not materially conflict with plaintiff's submissions.
Also correct was the grant of contractual indemnification in favor of St. Vincent's as against defendant Van Bulk. The contract between Blade Contracting Inc., the general contractor, and Van Bulk, the subcontractor, expressly states that Van Bulk will indemnify owner St. Vincent's. Plainly then, St. Vincent's was a third-party beneficiary of that indemnification provision, the parties' intention to assure St. Vincent's of indemnification having been not merely clearly implied, but expressly stated (see generally, Drzewinski v. Atl. Scaffold Ladder Co., 70 N.Y.2d 774, 777; New York Tel. Co. v. Gulf Oil Corp., 203 A.D.2d 26, 27).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.