Opinion
No. 31894/09.
06-08-2015
Denzil DALEY and Caroline Daley, Plaintiff, v. 250 PARK AVENUE, LLC, Anheuser–Busch, Inc. d/b/a Budweiser and Nucor Construction Corporation, Defendants.
Hoey, King, Epstein, Prezioso & Marquez, New York, Attorney for Defendant/Third Party Plaintiff. Ginsberg & Wolf, P.C., Denzil Daley and Caroline Daley, New York, Attorneys for Plaintiffs. Borchert, Genovesi, LaSpina & Landicino P.C., Anheuser–Bush, Inc. d/b/a Budweiser and Nucor Construction Corporation, Whitestone, Attorneys for Defendants.
Hoey, King, Epstein, Prezioso & Marquez, New York, Attorney for Defendant/Third Party Plaintiff.
Ginsberg & Wolf, P.C., Denzil Daley and Caroline Daley, New York, Attorneys for Plaintiffs.
Borchert, Genovesi, LaSpina & Landicino P.C., Anheuser–Bush, Inc. d/b/a Budweiser and Nucor Construction Corporation, Whitestone, Attorneys for Defendants.
Opinion
FRANCOIS A. RIVERA, J.
Recitation in accordance with CPLR 2219(a) of the third party defendant Anheuser–Busch, Inc. d/b/a Budweiser (hereinafter Budweiser) and second third party defendants Anheuser–Busch Inbev Services, LLC (hereinafter Inbev) (hereinafter jointly referred to as Anheuser–Busch) joint motion, filed on February 19, 2015, under motion sequence twenty-seven, for an order: (1) pursuant to CPLR 2221 granting leave to re-argue the order of the Court which, (a) granted 250 Park Avenue LLC's motion (hereinafter 250 Park) pursuant to CPLR 3212 granting conditional summary judgment on its contractual indemnification and breach of contract for failure to procure insurance, (b) granted 250 Park's summary judgment on its guarantee claim against it, and (c) denied Anheuser–Busch's cross motion for summary judgment dismissing all claims asserted in the third party actions against it; and (2) upon re-argument, denying 250 Park's motion for summary judgment and granting Anheuser–Busch's cross-motion in its entirety.
— Notice of motion
— Affirmation in support
— Exhibits A–H
Affirmation of 250 Park's counsel in opposition
Affirmation of plaintiff's counsel of no position
Reply affirmation
BACKGROUND
On August 22, 2009, plaintiffs Denzil Daley (hereinafter the injured plaintiff) and his wife Caroline Daley, suing derivatively, commenced the instant action for personal injuries and derivative claims by filing a summons and complaint with the Kings County Clerk's office (hereinafter KCCO). On September 24, 2012, 250 Park joined issue and asserted cross claims against Budweiser and Nucor for contribution, common law indemnification, contractual indemnification and breach of contract for failure to procure insurance. By answer dated May 28, 2013, Budweiser joined issue and asserted counterclaims against 250 Park for apportionment, contribution and indemnification. A note of issue was filed February 28, 2013.
On February 11, 2013, 250 Park commenced a third party complaint against Budweiser for breach of contract, common law indemnification and contractual indemnification by filing a summons and complaint with the KCCO under index number 7515/13.
On May 17, 2013, 250 Park commenced the second third party complaint against Inbev for breach of contract, common law indemnification and contractual indemnification by filing a summons and complaint with the KCCO under index number 75331/13. By answer dated August 8, 2013, Inbev joined issue and asserted counterclaims against 250 Park for apportionment, contribution, and indemnification.
The summons, complaint and bill of particulars asserts that on August 28, 2009, the plaintiff was working at 250 Park, New York, New York as an employee of non-party Broadway Electric when he fell from his ladder, sustaining physical injuries. It is undisputed that 250 Park was the owner, and Inbev was a tenant of the premises pursuant to a written lease agreement dated May 21, 2009. Budweiser was the guarantor on the lease between Inbev and 250 Park.
LAW AND APPLICATION
CPLR 2221(d) provides: A motion for leave to reargue:
1. shall be identified specifically as such;
2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and
3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals.
“Motions for re-argument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision” (Barnett v. Smith, 64 AD3d 669, 670–671 [2nd Dept 2009]citing, E.W. Howell Co., Inc. v. S.A.F. La Sala Corp., 36 AD3d 653 at 654 [2nd Dept 2007] ; see also, Beverage Marketing USA, Inc. v. South Beach Beverage Co., Inc., 58 AD3d 657 [2nd Dept 2009] ). “The Court does not retain the papers following the disposition of an application and should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions” (Lower Main St. v. Thomas Re & Partners, 2005 WL 6760926, NYLJ, April 5, 2005, at 19, col 3, [Sup.Ct., Nassau County 2005], citing Sheedy v. Pataki, 236 A.D.2d 92, 97 [3rd Dept 1997] ).
By decision and order issued January 22, 2015, the Court denied a prior application for the same relief filed by Anheuser–Busch on September 18, 2014, under motion sequence twenty-six. The denial was based on its failure to annex a copy of the decision and order that it sought to reargue. The denial was without prejudice so long as a motion for the same relief was filed on or before March 2, 2015. Anheuser–Busch timely filed the instant motion and cured the prior defect.
The right to contractual indemnification depends upon the specific language of the contract (Martinez v. City of New York, 73 AD3d 993 [2nd Dept 2010]citing George v. Marshalls of MA, Inc., 61 AD3d 925, 930 [2nd Dept 2009] ). It is well established that when a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed (Hooper Assocs. v. AGS Computers, 74 N.Y.2d 487, 491 [1981] ) “[A] party who has been held liable to an injured worker solely on the basis of the statutory liability imposed by section 240(1), without any fault on its part, is entitled to recover under a contract of indemnity” (Bermejo v. New York City Health and Hospitals Corp., 119 AD3d 500 [2nd Dept 2014] ). Further, parties may agree to an indemnification clause that is not limited to claims arising out of the negligence of a party (see Simone v. Liebherr Cranes, Inc., 90 AD3d 1019 [2nd Dept 2011] ; Tobio v. Boston Props., Inc., 54 AD3d 1022, 1024 [2nd Dept 2008] ). 250 Park's prior motion for conditional summary judgment on the contractual indemnification claims relied on the lease contract between itself and the Anheuser–Busch defendants, particularly Article 20.02, therein. Article 200.02 of the subject lease provided in pertinent as follows:
Tenant shall indemnify and hold harmless Landlord and its agents against and from (a) any and all claims (i) arising from (x) the conduct or management of the Demised Premises or of any business therein, (y) a breach by Tenant of his Lease or (z) any work or thing whatsoever done, or any condition created (other than by Landlord for Tenant's account) in or about the Demised Premises during the term of this Lease or during the period of time, if any, prior to the Commencement Date that Tenant may have been given access to the Demised Premises, or (ii) arising from any negligent or otherwise wrongful act of omission of Tenant or any of its subtenants or licensees or its or their employees, agents or contractors, and (b) all costs, expenses and liability incurred in or in connection with each such claim or action or proceeding brought thereon. If any action or proceeding is brought against Landlord by reason of any such claim, Tenant upon notice from Landlord, shall resist and defend such action or proceeding.
In particular, 250 Park relied upon section “(a)(i)(z)” of the indemnification provision in asserting that Anheuser–Busch was required to indemnify it in situations such as the first party action. Indeed, Section “(a)(i)(z)” of the indemnification provision provides that Anheuser–Busch is required to indemnify 250 Park. The Court found that the language of the provision was broad and included any and all claims arising out of work done at the premises. The Court also found that the instant action was based on a claim that arose from the injured plaintiff performing work at the premises, triggering section “(a) (i)(z).” The Court further found that Anheuser–Busch had a duty to indemnify 250 Park and that they failed to raise a triable issue of fact.
Anheuser–Busch has asserted here that the Court misapplied fundamental principles of contract law in its analysis of the inconsistent provisions between the general broad provision of “(a)(i)(z)” and the application of the specific section (a)(ii) of Article 20.02. In particular, Anheuser–Busch contends that section “(a)(i)(z)” of the indemnification provision is not triggered in instances such as the instant litigation as it is inapplicable to tort actions. Anheuser–Busch further asserts that only section “(a)(ii)” applies to tort actions. Furthermore, it contends that section “(a)(ii)” requires a finding of negligence on Anheuser–Busch's part in order to trigger the obligation to indemnify. Finally, it argues that the Court should adopt the more restrictive provisions of section (a)(ii) of Article 20.02 because the more restrictive controls the more general provision and a contrary reading would render section (a)(ii) meaningless.
These arguments were either made before, or were considered and rejected. The Court disagrees with the characterization that section (a)(i)(z) is a general provision and (a)(ii) is a specific provision. Section (a)(i) of Article 20.02, provides one of three avenues available to 250 Park to seek indemnification, namely, section (a)(i)(x); (a)(i)(y); and (a)(i)(z). 250 Park availed itself of (a)(i)(z). Section (a)(ii) of Article 20.02 simply offers 250 Park a fourth avenue to seek indemnification. The language of Article 20 .02 provides that Anheuser–Busch may invoke either (a)(i)(x), (a)(i)(y), (a)(i)(z) or (a)(ii). The language utilized in Article 20.02 is neither ambiguous nor internally inconsistent. It does not state and cannot be read to mean that the language of (a)(ii) is meant to apply as a restriction to any provision of (a)(i). Thus, Anheuser–Busch could invoke indemnification under either any provision of (a)(i) or under (a)(ii). The argument that the plain reading renders section (a)(ii) meaningless is also unavailing. Article 20.02 as a whole is clear and unambiguous. It is not internally inconsistent or contradictory. The Court cannot and does not assume that the parties meant something other than the plain meaning of their agreement.
Anheuser–Busch did not demonstrate that the Court misapprehended the law or the facts or overlooked anything. Accordingly, Anheuser–Busch's motion for leave to reargue the order of the Court which granted 250 Park LLC's motion for conditional summary judgment on its contractual indemnification and breach of contract for failure to procure insurance claims is denied. Similarly, Anheuser–Busch's motion for leave to reargue the order of the Court which granted 250 Park summary judgment on its guarantee claim against it is also denied. The Court, therefore, does not reach Anheuser–Busch's motion which upon re-argument seeks an order denying 250 Park's motion and granting its cross motion in its entirety.
CONCLUSION
Anheuser–Busch's motion for leave to reargue the order of the Court which
(a) granted 250 Park's motion for conditional summary judgment on its contractual indemnification and breach of contract claim for failure to procure insurance,
(b) granted 250 Park's motion for summary judgment on its guarantee claim against it, and,
(c) denied its cross motion for summary judgment dismissing all claims asserted in the third party actions against it; and
(2) upon re-argument, denied 250 Park's motion for summary judgment and granting Anheuser–Busch's cross-motion in its entirety is denied.
The foregoing constitutes the decision and order of this Court.