Opinion
CA 03-01646.
February 11, 2004.
Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), entered April 22, 2003. The order denied the motion of third-party defendant for summary judgment dismissing the third-party complaint and granted the cross motions of defendants-third-party plaintiffs for summary judgment on contractual indemnification from third-party defendant.
RUPP, BAASE, PFALZGRAF, CUNNINGHAM COPPOLA LLC, BUFFALO (JOHANNA M. DASH OF COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT.
HURWITZ FINE, P.C., BUFFALO (DAN D. KOHANE OF COUNSEL), FOR THIRD-PARTY PLAINTIFFS-RESPONDENTS NORSTAR BUILDING CORP., NORSTAR DEVELOPMENT USA, INC., AND BUFFALO MUNICIPAL HOUSING AUTHORITY.
DAVIS AUGELLO MATTELIANO GERSTEN, LLP, BUFFALO (JOSEPH A. MATTELIANO OF COUNSEL), FOR THIRD-PARTY PLAINTIFF-RESPONDENT FREDERICK DOUGLASS ASSOCIATES, LP.
Before: PRESENT: GREEN, J.P., WISNER, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly granted the cross motions of defendants-third-party plaintiffs seeking summary judgment on contractual indemnification from third-party defendant. Plaintiff commenced this action to recover damages for injuries he sustained in October 2000 during the course of his employment. Notwithstanding the deposition testimony of the president of third-party defendant corporation that he signed the subject contract on January 10, 2001, the contract itself expressly provides that it was "made as of" August 10, 2000 and was "entered into" as of that date. "It is axiomatic that a contract is to be interpreted so as to give effect to the intention of the parties as expressed in the unequivocal language employed" ( Morlee Sales Corp. v. Manufacturers Trust Co., 9 N.Y.2d 16, 19; see Breed v. Insurance Co. of N. Am., 46 N.Y.2d 351, 355, rearg denied 46 N.Y.2d 940). Here, the contract unequivocally provides that it is effective as of August 10, 2000, a date prior to plaintiff's accident. Thus, contrary to the contention of third-party defendant, Workers' Compensation Law § 11 does not prohibit enforcement of the contract's indemnification provision ( see Stabile v. Viener, 291 A.D.2d 395, 396, lv dismissed 98 N.Y.2d 727; see also Pena v. Chateau Woodmere Corp., 304 A.D.2d 442, 443-444).