Opinion
27133/09
05-11-2015
Jonna Barnes and MATTHEW BARNES, Plaintiff(s), v. Deseree A. Labua, MARK A. LABUA, THERESA ANN SALIBA, ROBERT S. CALNICK, KAREEM R. CALNICK, UNISYS CORPORATION, SDI INTERNATIONAL CORP., SDI INTERNATIONAL, LLC, RANDSTAD US, L.P., RANDSTAD PROFESSIONALS US, LP, RANSTAD TECHNOLOGIES, LP, RANDSTAD MANAGED SERVICES, RANDSTAD SOURCE- RIGHT, RANDSTAD PROFESSIONALS, US, LIMITED PARTNERSHIP a/k/a RANDSTAD PROFESSIONALS US, LP, and SAPPHIRE TECHNOLOGIES, LIMITED PARTNERSHIP a/k/a SAPPHIRE TECHNOLOGIES, LP, Defendant(s).
Attorney for Plaintiff John Zervopoulos, Esq. Salenger, Sack, Kimmel & Bavaro, LLP 180 Froehlich Farm Boulevard Woodbury, New York 11797 (516) 677-0100 Attorney for Defendants Superior Design Internationa, Inc. SDI International Corp. and Unisys Corporation Sean J. O'Sullivan, Esq. Ahmuty, Demers & McManus, Esqs. 200 I.U. Willets Road Albertson, New York 11507 (516) 294-5433 Attorney for Defendant LaBua Robert S. Mazzuchin, Esq. Brand, Glick & Brand, P.C. 600 Old Country Road Garden City, New York 11530 Attorney for Defendant Saliba Morrison Mahoney 120 Broadway — Suite 1010 New York, New York 10271 Attorney for Defendants Robert S. Calnick & Kareem R. Calnick Law Offices of Karen Lawrence 4 MetroTech Center, Suite 2000 — 20th Floor Brooklyn, New York 11201 (718) 250-0400
Attorney for Plaintiff
John Zervopoulos, Esq.
Salenger, Sack, Kimmel & Bavaro, LLP
180 Froehlich Farm Boulevard
Woodbury, New York 11797 (516) 677-0100
Attorney for Defendants Superior Design Internationa, Inc. SDI International Corp. and Unisys Corporation
Sean J. O'Sullivan, Esq.
Ahmuty, Demers & McManus, Esqs.
200 I.U. Willets Road
Albertson, New York 11507
(516) 294-5433
Attorney for Defendant LaBua
Robert S. Mazzuchin, Esq.
Brand, Glick & Brand, P.C.
600 Old Country Road
Garden City, New York 11530
Attorney for Defendant Saliba
Morrison Mahoney
120 Broadway — Suite 1010
New York, New York 10271
Attorney for Defendants Robert S. Calnick & Kareem R. Calnick
Law Offices of Karen Lawrence
4 MetroTech Center, Suite 2000 — 20th Floor
Brooklyn, New York 11201
(718) 250-0400
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint motion of Unisys Corporation (hereinafter Unisys), Superior Design International, Inc. and SDI International, LLC (hereinafter jointly the SDI defendants), filed on September 16, 2014, under motion sequence number thirteen, for an order granting the SDI defendants and Unisys summary judgment as against the defendants, Randstad, U.S., LP; Randstad Technologies, LP, Ranstad Managed Services, Randstad Sourceright, Partnership a/k/a Randstad Professional, U.S. LP and Sapphire Technologies, LP (hereinafter jointly the Randstad defendants) based on a claim of contractual indemnification.
On January 30, 2015, the Court denied a part of the instant motion which sought an order seeking summary judgment on liability. On that date the Court also decided two other summary judgment motions. First, the Court denied Randstad's motion for summary judgment on liability. Second, the Court granted in part plaintiff's summary judgment motion as to liability as against defendant Labua and found that plaintiff was free from comparative fault. The apportionment of liability of Labua and Calnick to be determined at trial. Accordingly, only that portion of SDI's motion for summary judgment for the contractual indemnification claims remains.
Notice of Motion
Affirmation of Counsel
Exhibit A-Z
Memorandum of Law
Affirmation in Opposition
Reply Affirmation
BACKGROUND
On October 27, 2009, plaintiff Jonna Barnes (hereinafter the injured plaintiff or J. Barnes) and Matthew Barnes (hereinafter M. Barnes), her husband suing derivatively, commenced the instant action for damages for personal injuries by filing a summons and complaint against the defendants Deseree A. Labua (hereinafter Labua) and Mark A. Labua, Theresa Ann Saliba (hereinafter Saliba), Robert S. Calnick and Kareem R. Calnick (hereinafter Calnick) with the Kings County Clerk's office under index number 27133/2009.
The complaint contains seventy-eight allegations of fact in support of four causes of action for damages for personal injuries and derivative claims. The complaint alleges in pertinent part that plaintiff was involved in two separate motor vehicle accidents. The first took place on March 1, 2007 (hereinafter the March accident). The second accident occurred on June 8, 2009 (hereinafter the June accident). The June accident is the occurrence of relevance to the instant motion. The June accident involved three vehicles. The plaintiff was operating the lead vehicle. The middle vehicle was operated by the defendant Saliba. The rear vehicle was operated by the defendant Calnick.
The injured plaintiff and M. Barnes, her husband suing derivatively, then commenced an action for damages for personal injuries by filing a summons and complaint with the Queens County Clerk's Office against the defendant Unisys Corporation under index number 7295/2012. The injured plaintiff and M. Barnes, her husband suing derivatively, then commenced an action for damages for personal injuries by filing a summons and complaint with the Queens County Clerk's Office against the defendants SDI International, Corp. and SDI International, LLC. under index number 8650/2012. The injured plaintiff and M. Barnes, her husband suing derivatively, then commenced an action for damages for personal injuries by filing a summons and complaint with the Queens County Clerk's Office against the defendants Randstad, U.S., LP; Randstad Professionals US, LP, Randstad Technologies, LP, Ranstad Managed Services, Randstad Sourceright, Randstad Professionals US, Limited Partnership a/k/a Randstad Professionals US, LP and Sapphire Technologies, Limited Partnership a/k/a Sapphire Technologies, LP under index number 10072/2012. The three complaints filed in Queens County allege damages for personal injuries arising out of the defendants' vicarious liability premised on Calnick's alleged employment with the defendants at the time of the accident.
By order dated October 9, 2012, the actions under index numbers 8650/12, 7925/12, and 10072/12 were consolidated with the instant Kings County action. The order further stated that the pleadings in each action shall stand as the pleading in the consolidated action.
On March 19, 2013, the SDI defendants interposed cross-claims against all of the co-defendants in the action for contribution and contractual indemnification. A note of issue was filed on April 16, 2014. By Order dated June 23, 2014, the parties' time for making summary judgment motions was extended up to and including September 16, 2014.
Generally, co-defendants that have cross claims against one another would not move jointly. However, in the instant motion since the relief is limited to summary judgment on the issue of contractual indemnification against a third defendant, the co-defendants have a common interest in moving jointly.
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LAW AND APPLICATION
Contractual Indemnification
"The right to contractual indemnification depends upon the specific language of the contract" (Dos Santos v Power Auth. of State of NY, 85 AD3d 718, 722, quoting George v Marshalls of MA, Inc., 61 AD3d 925, 930; see Alayev v Juster Assoc., LLC, 122 AD3d 886, 887). "The 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" (Alayev v Juster Assoc., LLC, 122 AD3d at 887; see Hooper Assoc. v AGS Computers, 74 NY2d 487, 491—492). Parties may agree to an indemnification clause that is not limited to claims arising out of the negligence of a party i.e. for losses arising out of breach of contract, defaults or any acts or omissions; attorney's fees, (see Tobio v Boston Props., Inc., 54 AD3d 1022, 1024; Simone v Liebherr Cranes, Inc., 90 AD3d 1019; cf. Zastenchik v Knollwood Country Club, 101 AD3d 861; Cunha v City of New York, 45 AD3d 624, aff'd 12 NY3d 504; Moss v McDonald's Corp., 34 AD3d 656). However, where the indemnification clause by its terms, limits indemnification only to claims arising out of the negligence then "a party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662, 871 NYS2d 654; see General Obligations Law § 5—322.1).
In support of the instant motion the movants submit a contract as Exhibit P, which contains indemnification provisions. The signatories to the contract are Superior Design International, Inc. and Sapphire Technologies. The Randstad defendants admitted in the deposition of Richard Martyn that Randstad was previously named Sapphire Technologies and that Randstad was bound by the contract.
The movants allege that the SDI defendants acted as a "broker" with the Randstad defendants to supply Unisys with employees. In order to supply Unisys with the employees, the SDI defendants entered into a contract titled an "associate supplier agreement" with Sapphire Technologies. Sapphire Technologies, referred therein as the "associate supplier", was to vet potential employees in order to provide contract staffing services. The potential employee's information was then transferred to the SDI defendants to conduct further evaluations as to the suitability of the potential employee. Calnick was hired by Unisys after he completed this process.
The SDI defendants and Unisys assert that the associate supplier agreement between Sapphire Technologies and the SDI defendants provides that the SDI defendants are obligated to indemnify both SDI and Unisys for third party claims of personal injury, such as the claims brought by the injured plaintiff.
The contract between the SDI defendants and Randstad defendants contains an indemnification clause found in paragraph 33(C)(i)-(vii). The provision states:
(i)Mutual Indemnification: Each party (where necessary the indemnifying party is referred to as the "indemnitor") agrees to defend, indemnify and hold harmless the other party, its respective subsidiaries, affiliates, officers, directors, employees, and agents, and Associate Supplier also agrees to defend, indemnify and hold harmless the Customer, its subsidiaries, affiliates, customers, officers, director, employees and agents (any indemnified parties and persons are the "indemnities" from and against any and all damages, losses, liabilities, judgments, penalties, fines, settlement amount, fees, costs and expenses (including without limitation, the reasonable fees and expenses of attorneys and other professionals that the Indemnities may suffer or incur to the extent arising out of or attributable to any of the following (each a "Claim'):
A claim is defined in sections 33(C)(ii)-(vii). The only definition of "claims" that is arguably applicable to the instant action is found in 33(C)(ii) which states:
Claims by a party or a third party (including without limitation, personnel of SDI, Associate Supplier, Customer, and/or their subsidiaries and affiliates and Customer's Customer) of personal injury (including death), loss of or damage to tangible property, or claims of wilful misconduct or gross negligence.
The SDI defendants and Unisys assert that the Randstad defendants must indemnify them based on the above provisions. They assert that J. Barnes qualifies as a "third party" within the intendment of the provision and that the underlying personal injury action is a "claim" which would trigger the Randstad defendants obligation to indemnify. As the provision is not limited to indemnification based on negligence, rather any occurrence that fits the definition of a "claim," a finding that the movants are free from negligence is not necessary to trigger the obligation.
Parties can contractually provide for mutual indemnification (see i.e Host Marriot Corp. v. North, 257 AD2d 404 [1st Dept]). However, where all parties to the indemnification provision are sued individually under the same claim, there is no guidance as to how to apply the provision. The first line of the provision states that "each party...agrees to defend, indemnify and hold harmless the other party, its respective subsidiaries, affiliates, officers, directors, employees, and agents..." Reading the plain language of the contract each signatory, namely the SDI defendants and the Randstad defendants have agreed to indemnify the other.
The second aspect of the provision appears to add an additional obligation only to the Randstad defendants. The language of the provision states "and Associate Supplier also agrees to defend, indemnify and hold harmless the Customer." The language begs a question, assuming that this second provision provides for Randstad to indemnify Unisys, is SDI then obligated to indemnify the Randstad defendants based on the "mutual indemnification" provision? As the contract fails to set forth the parties' respective obligations in situations such as this, the movants have failed to establish their prima facie burden that the Randstad defendants are obligated to indemnify them under the terms of the contract. Accordingly, the motion for summary judgment is denied, regardless of the sufficiency of the Randstadt defendants' opposing papers ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
While the Court need not review the opposing papers, in the interests of clarity it should be noted that the Randstad defendants opposed the motion based on a position that indemnification clause was void because it violated the General Obligations Law § 5—322.1. While there are several types of indemnification clauses that potentially violate the GOL, the instant one does not. The GOL specifies the types of indemnification provisions which are prohibited. The prohibited clauses include, but are not limited to, clauses in contracts purporting to indemnify a party for its own negligence in regards to lessors, caterers, owners and contractors in the context of construction contracts, building servicers and maintenance (see Tingling v C.I.N.H.R., Inc., 120 AD3d 570, 571; General Obligations Law § GOL 5-301 et seq). In the instant action the purported indemnification clause is not limited to negligence and further does not fall within the specific ambit of the General Obligations Law.
CONCLUSION
The SDI defendants and Unisys' joint motion for contractual indemnification as against the Randstad defendants is denied.
The foregoing constitutes the decision and order of this Court.
Enter:
J.S.C.