Opinion
6033 & M–698 Index 156632/13
03-20-2018
James FRANK, et al., Plaintiffs, v. 1100 AVENUE OF the AMERICAS ASSOCIATES, et al., Defendants–Respondents, Statewide Demolition Corp., Defendant–Appellant.
Cascone & Kluepfel, LLP, Garden City (Olympia Rubino of counsel), for appellant. Smith, Mazure, Director, Wilkins, Young & Yagerman, P.C., New York (Stacy I. Malinow of counsel), for respondents.
Cascone & Kluepfel, LLP, Garden City (Olympia Rubino of counsel), for appellant.
Smith, Mazure, Director, Wilkins, Young & Yagerman, P.C., New York (Stacy I. Malinow of counsel), for respondents.
Friedman, J.P., Richter, Mazzarelli, Kapnick, Gesmer, JJ.
Order, Supreme Court, New York County (Jennifer G. Schechter, J.), entered on or about February 3, 2017, which, insofar as appealed from, granted the motion of defendants 1100 Avenue of the Americas Associates (1100 Associates), JT Magen & Co., Inc. (JT Magen), and Home Box Office Inc. (HBO) (together movants) for summary judgment on their cross claim against Statewide Demolition Corp. for contractual indemnification, unanimously affirmed, without costs.
The record shows that, pursuant to its contract with HBO, JT Magen was generally responsible for coordinating and scheduling subcontractors' work, and for site safety. Standing alone, this is not enough to impose liability in negligence on JT Magen for the injuries allegedly sustained by plaintiff, who was an employee of Hugh O'Kane Electric Co., one of JT Magen's subcontractors. Nor is there any evidence that JT Magen directly controlled the work of Statewide, the demolition contractor, or of any other basis for a finding that JT Magen was negligent (see Bisram v. Long Is. Jewish Hosp., 116 A.D.3d 475, 476, 983 N.Y.S.2d 518 [1st Dept. 2014] ; Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 449, 961 N.Y.S.2d 91 [1st Dept. 2013] ; O'Sullivan v. IDI Constr. Co., Inc., 28 A.D.3d 225, 226, 813 N.Y.S.2d 373 [1st Dept. 2006], affd 7 N.Y.3d 805, 822 N.Y.S.2d 745, 855 N.E.2d 1159 [2006] ).
Statewide's argument that the indemnity clause contained in the purchase order issued to it by JT Magen violates the General Obligations Law's proscription against exempting owners and contractors from liability for their own negligence (see General Obligation Law § 5–322.1) is unpreserved and without merit. The indemnity clause expressly limits its own scope "[t]o the fullest extent permitted by law." Such qualifying language "limit[s] [a party's] contractual indemnity obligation solely to [the party's] own negligence" ( Brooks v. Judlau Contr., Inc., 11 N.Y.3d 204, 210, 869 N.Y.S.2d 366, 898 N.E.2d 549 [2008] ), and redeems an otherwise facially violative indemnity provision (see Johnson v. Chelsea Grand E., LLC, 124 A.D.3d 542, 543, 2 N.Y.S.3d 446 [1st Dept. 2015] ). Indeed, the indemnity provision at issue here goes beyond pro forma limiting language and expressly restricts the indemnitees' right to recover to be coextensive with their own lack of fault. Since the accident arose from the covered work and movants established themselves to be free from fault in causing plaintiff's alleged injuries, the motion court properly granted movants' motion for summary judgment on their cross claim against Statewide for contractual indemnification.
Also without merit is Statewide's argument that movants failed to show that 1100 Associates and HBO are designated as indemnitees under the purchase order. The purchase order on its face identifies the "Building Owner" and "Landlord" as an indemnitee; there is no question that 1100 Associates owns the subject building. The purchase order also identifies the "Owner" as an indemnitee. While the identity of the "Owner" is not clear from the face of the purchase order, that document incorporates by reference JT Magen's prime contract with the "Owner." JT Magen's prime contract, in turn, is with HBO as net lessee of the building and "Owner." Hence, Statewide's assumption of a duty to indemnify, as well as movants' identities as indemnitees, is clear on the face of the purchase order and the governing prime contract incorporated therein by reference (see BWA Corp. v. Alltrans Express U.S.A., 112 A.D.2d 850, 852, 493 N.Y.S.2d 1 [1st Dept. 1985] ).