L'Abbate, Balkan, Colavita & Contini, L.L.P., Melville (Lee Sacket of counsel), for appellant.

Axelrod, Fingerhut & Dennis, New York (Osman Dennis of counsel), for respondent.

Order, Supreme Court, New York County (Lori Sattler, J.), entered June 30, 2022, which, to the extent appealed from, denied defendant D&B Engineers and Architects, P.C.'s (D&B) motion for summary judgment dismissing the complaint and all cross-claims as against it, and granted defendant John Franco Contractors Inc.'s (Franco) motion for leave to amend its answer to assert a cross-claim for contribution against D&B, unanimously modified, on the law, to grant that portion of D&B's motion for summary judgment dismissing all cross-claims as against it for common law indemnification, and otherwise affirmed, without costs.

The motion court properly denied D&B's motion for summary judgment dismissing the complaint. There are triable issues of fact as to whether D&B assumed a duty to perform work related to the demolition of the kitchen, from where the gas pipe was removed, and whether D&B was in fact involved in such work or the supervision thereof (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Given the foregoing, the court also properly denied D&B's motion to the extent that it sought dismissal of the cross-claims against it for contribution (see generally Raquet v Braun, 90 NY2d 177, 183 [1997]). However, to the extent any defendant has asserted a cross-claim against D&B for common law indemnification, that cross-claim should have been dismissed as those defendants are not being held vicariously liable (see McCarthy v Turner Constr., Inc., 17 NY3d 369, 377-378 [2011] ["a party cannot obtain common-law indemnification unless it has been held to be vicariously liable without proof of any negligence or actual supervision on its own part"]).

The court providently exercised its discretion in granting Franco's motion for leave to amend its answer to assert a cross-claim for contribution against D&B (see CPLR 3025 [b]; Kocourek v Booz Allen Hamilton Inc., 85 AD3d 502, 504 [1st Dept 2011]). Mere delay was insufficient to defeat the motion for leave to amend, and D&B failed to establish prejudice (Kocourek, 85 AD3d at 504). Concur—Kern, J.P., Oing, Kennedy, Shulman, Higgitt, JJ.