Opinion
2020–06300 Index No. 702077/18
09-13-2023
Patricio CEDILLO, plaintiff, v. NAUTILUS REALTY LIMITED PARTNERSHIP, et al., defendants third-party plaintiffs-appellants; DNA Contracting and Waterproofing, LLC, third-party defendant-respondent.
Ondrovic, Hurley & Platek, PLLC, White Plains, NY (Jeremy D. Platek of counsel), for defendants third-party plaintiffs-appellants. Segal McCambridge Singer & Mahoney, Ltd., New York, NY (Christian H. Gannon and Jonathan A. Heller of counsel), for third-party defendant-respondent.
Ondrovic, Hurley & Platek, PLLC, White Plains, NY (Jeremy D. Platek of counsel), for defendants third-party plaintiffs-appellants.
Segal McCambridge Singer & Mahoney, Ltd., New York, NY (Christian H. Gannon and Jonathan A. Heller of counsel), for third-party defendant-respondent.
ANGELA G. IANNACCI, J.P., LARA J. GENOVESI, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants third-party plaintiffs appeal from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), entered July 30, 2020. The order denied the defendants third-party plaintiffs’ motion, in effect, for conditional summary judgment on the third-party cause of action for contractual indemnification.
ORDERED that the order is reversed, on the law, with costs, and the defendants third-party plaintiffs’ motion, in effect, for conditional summary judgment on the third-party cause of action for contractual indemnification is granted.
The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when he fell from a scaffold while working on a residential construction project at an apartment building. The apartment building was owned by the defendant third-party plaintiff Nautilus Realty Limited Partnership (hereinafter Nautilus), and the defendant third-party plaintiff Estates N.Y. Real Estate Services, LLC (hereinafter Estates), was the managing agent. Nautilus and Estates (hereinafter together the third-party plaintiffs) asserted, inter alia, a third-party cause of action against the third-party defendant, DNA Contracting and Waterproofing, LLC, for contractual indemnification. The third-party plaintiffs moved, in effect, for conditional summary judgment on the third-party cause of action for contractual indemnification. In an order entered July 30, 2020, the Supreme Court denied the motion. The third-party plaintiffs appeal.
"A party's right to contractual indemnification depends upon the specific language of the relevant contract" ( Shea v. Bloomberg, L.P., 124 A.D.3d 621, 622, 2 N.Y.S.3d 512 ; see Mejia v. Cohn, 188 A.D.3d 1035, 1038, 136 N.Y.S.3d 480 ). "A 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" ( Shea v. Bloomberg, L.P., 124 A.D.3d at 622, 2 N.Y.S.3d 512 ; see Mejia v. Cohn, 188 A.D.3d at 1038, 136 N.Y.S.3d 480 ). In addition, a promise in connection with a contract relative to the construction of a building purporting to indemnify or hold harmless the promisee against liability for bodily injury caused by the negligence of the promisee is unenforceable (see General Obligations Law § 5–322.1[1] ; Brooks v. Judlau Contr., Inc., 11 N.Y.3d 204, 207, 869 N.Y.S.2d 366, 898 N.E.2d 549 ; Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 179–180, 556 N.Y.S.2d 991, 556 N.E.2d 430 ).
Here, the Supreme Court should have granted the third-party plaintiffs’ motion, in effect, for conditional summary judgment on the third-party cause of action for contractual indemnification. The third-party plaintiffs established, prima facie, that they were entitled to contractual indemnification (see Mejia v. Cohn, 188 A.D.3d at 1038–1039, 136 N.Y.S.3d 480 ; De Souza v. Empire Tr. Mix, Inc., 155 A.D.3d 605, 606–607, 63 N.Y.S.3d 473 ). Pursuant to the terms of the indemnification provision of the "Master Construction Agreement for Construction Projects," the third-party defendant was obligated to indemnify the third-party plaintiffs for all claims for "[d]amages caused by, arising out of, resulting from or occurring in connection with the performance of the Work by ... the Contractor, its subcontractors or their respective agents or employees." The third-party plaintiffs submitted a transcript of the plaintiff's deposition testimony, during which he testified that he was employed by the third-party defendant while working on the scaffold at the subject site. The third-party plaintiffs further submitted the affidavit of the senior director of residential project management for Estates, who averred that the third-party plaintiffs contracted with the third-party defendant to complete facade renovations on the apartment building. The third-party plaintiffs also demonstrated, prima facie, that they were not negligent as they did not supervise or direct the work that caused the plaintiff's injuries (see Guryev v. Tomchinsky, 114 A.D.3d 723, 725, 981 N.Y.S.2d 429 ). Moreover, the third-party plaintiffs established that the plaintiff was injured while performing facade renovations pursuant to the contract between the third-party plaintiffs and the third-party defendant. In opposition, the third-party defendant failed to raise a triable issue of fact. The third-party defendant failed to provide sufficient evidence to dispute that the plaintiff's claims arose out of or occurred in connection with the performance of the facade renovations (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Mejia v. Cohn, 188 A.D.3d at 1039, 136 N.Y.S.3d 480 ).
Furthermore, contrary to the Supreme Court's determination, the third-party plaintiffs’ motion was not premature, as the third-party defendant failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence or that facts essential to opposing the motion were exclusively within the knowledge and control of the third-party plaintiffs (see CPLR 3212[f] ; Edwards v. Cheezwhse Com, Inc., 210 A.D.3d 952, 953, 178 N.Y.S.3d 465 ; Liddell v. Morrison, 204 A.D.3d 987, 989, 165 N.Y.S.3d 342 ).
IANNACCI, J.P., GENOVESI, DOWLING and VOUTSINAS, JJ., concur.