Opinion
2021–04514 Index No. 606717/14
11-22-2023
Andres Javier Lazo CHAPA, plaintiff, v. BAYLES PROPERTIES, INC., et al., respondents, CS Stucco & Plaster, appellant, et al., defendants.
Oleske & Oleske, LLP, Goshen, NY (Jerald F. Oleske of counsel), for appellant. Traub Lieberman, Hawthorne, NY (Timothy G. McNamara of counsel), for respondents.
Oleske & Oleske, LLP, Goshen, NY (Jerald F. Oleske of counsel), for appellant.
Traub Lieberman, Hawthorne, NY (Timothy G. McNamara of counsel), for respondents.
COLLEEN D. DUFFY, J.P., VALERIE BRATHWAITE NELSON, CHERYL E. CHAMBERS, BARRY E. WARHIT, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant CS Stucco & Plaster appeals from an order of the Supreme Court, Nassau County (Helen Voutsinas, J.), entered April 21, 2021. The order, insofar as appealed from, granted those branches of the motion of the defendants Bayles Properties, Inc., and Ressa Management, LLC, which were for summary judgment on their cross-claims against the defendant CS Stucco & Plaster for contractual and common-law indemnification.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Bayles Properties, Inc., and Ressa Management, LLC, which was for summary judgment on their cross-claims against the defendant CS Stucco & Plaster for common-law indemnification, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff commenced this personal injury action against various defendants, including Bayles Properties, Inc. (hereinafter Bayles ), Ressa Management, LLC (hereinafter Ressa), and CS Stucco & Plaster (hereinafter CS Stucco), asserting, inter alia, a cause of action alleging a violation of Labor Law § 240(1) based on injuries the plaintiff allegedly sustained when he fell off a ladder while working at a job site owned by Bayles. In their answers, Bayles and Ressa asserted cross-claims against CS Stucco for contractual and common-law indemnification.
The plaintiff moved, inter alia, for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) against Bayles. In an order entered September 20, 2017, which this Court affirmed insofar as appealed from by Bayles, the Supreme Court granted that branch of the plaintiff's motion (see Chapa v. Bayles Props., Inc., 179 A.D.3d 886, 114 N.Y.S.3d 717 ).
Bayles and Ressa moved, inter alia, for summary judgment on their cross-claims against CS Stucco for contractual and common-law indemnification. By order entered April 21, 2021, the Supreme Court, among other things, granted those branches of the motion. CS Stucco appeals.
The Supreme Court should have denied that branch of the motion of Bayles and Ressa which was for summary judgment on their cross-claims against CS Stucco for common-law indemnification. "The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party" ( Curreri v. Heritage Prop. Inv. Trust, Inc., 48 A.D.3d 505, 507, 852 N.Y.S.2d 278 ; see McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 375, 929 N.Y.S.2d 556, 953 N.E.2d 794 ). Evidence of a party's authority to supervise or direct work, without more, is insufficient to impose liability upon that party under a theory of common-law indemnification (see McCarthy v. Turner Constr., Inc., 17 N.Y.3d at 378, 929 N.Y.S.2d 556, 953 N.E.2d 794 ). Here, in support of their motion, Bayles and Ressa failed to eliminate triable issues of fact as to whether CS Stucco either was negligent or actually directed or supervised the work that gave rise to the plaintiff's injuries (see id. ; Aponte v. Airport Indus. Park, LLC, 202 A.D.3d 895, 897–898, 159 N.Y.S.3d 694 ; see also Debennedetto v. Chetrit, 190 A.D.3d 933, 938, 140 N.Y.S.3d 569 ; Rizo v. 165 Eileen Way, LLC, 169 A.D.3d 943, 947, 94 N.Y.S.3d 157 ). Since Bayles and Ressa failed to meet their initial burden as the movants, it is unnecessary to consider the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Aponte v. Airport Indus. Park, LLC, 202 A.D.3d at 898, 159 N.Y.S.3d 694 ).
The Supreme Court properly granted that branch of the motion of Bayles and Ressa which was for summary judgment on their cross-claims against CS Stucco for contractual indemnification. The right to contractual indemnification "depends upon the specific language of the contract," and "[t]he promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances" ( Skerrett v. LIC Site B2 Owner, LLC, 199 A.D.3d 956, 959, 158 N.Y.S.3d 186 ). Here, although the hold harmless agreement at issue was executed after the date of the plaintiff's accident, Bayles and Ressa demonstrated, prima facie, that the parties intended the agreement to apply retroactively to include the entire duration of the subject project (see Cinquemani v. Old Slip Assoc., LP, 77 A.D.3d 603, 603–604, 912 N.Y.S.2d 224 ; see also Tanksley v. LCO Bldg. LLC, 196 A.D.3d 1037, 1037–1038, 151 N.Y.S.3d 293 ; Pena v. Chateau Woodmere Corp., 304 A.D.2d 442, 443, 759 N.Y.S.2d 451 ). Moreover, contrary to CS Stucco's contention, Bayles and Ressa demonstrated that they were free from active negligence in connection with the plaintiff's injuries (see Mohan v. Atlantic Ct., LLC, 134 A.D.3d 1075, 1078, 24 N.Y.S.3d 102 ; Reisman v. Bay Shore Union Free School Dist., 74 A.D.3d 772, 774, 902 N.Y.S.2d 167 ). In opposition, CS Stucco failed to raise a triable issue of fact.
DUFFY, J.P., BRATHWAITE NELSON, CHAMBERS and WARHIT, JJ., concur.