Opinion
6380 Index 156351/12
04-26-2018
Sherlock NICHOLSON, Plaintiff, v. SABEY DATA CENTER PROPERTIES, LLC, et al., Defendants. [And a Third–Party Action] Select Safety Consulting Services, Inc., Second Third–Party Plaintiff–Appellant, v. Cirocco and Ozzimo, Inc., Second Third–Party Defendant–Respondent.
Nicoletti Gonson Spinner LLP, New York (Benjamin N. Gonson of counsel), for appellant. Koster, Brady & Nagler, LLP, New York (Kenneth Todd Bierman of counsel), for respondent.
Nicoletti Gonson Spinner LLP, New York (Benjamin N. Gonson of counsel), for appellant.
Koster, Brady & Nagler, LLP, New York (Kenneth Todd Bierman of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Tom, Andrias, Oing, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about February 24, 2017, which, insofar as appealed from as limited by the briefs, granted second third-party defendant's (Cirocco) motion pursuant to CPLR 3211(a)(1) to dismiss the second third-party causes of action for contractual indemnification and breach of contract for failure to procure insurance, unanimously affirmed, with costs.
The subcontract between Cirocco and defendant Sabey Construction, Inc. neither identified second third-party plaintiff (Select) as an "agent" nor included Select in the entities identified in the indemnification provision. Thus, it did not "spell out" an obligation on Cirocco's part to indemnify Select, and no such obligation will be read into it (see Tonking v. Port Auth. of N.Y. & N.J., 3 N.Y.3d 486, 490, 787 N.Y.S.2d 708, 821 N.E.2d 133 [2004] ; A.R. Mack Constr. Co. v. Patricia Elec., 5 A.D.3d 1025, 1027, 773 N.Y.S.2d 643 [4th Dept. 2004] ). "If the parties intended to cover [Select] as a potential indemnitee, they had only to say so unambiguously" ( Tonking, 3 N.Y.3d at 490, 787 N.Y.S.2d 708, 821 N.E.2d 133 ).
Nor did the subcontract "expressly and specifically" state a requirement that Cirocco name Select as an additional insured under an insurance policy (see 77 Water St., Inc. v. JTC Painting & Decorating Corp., 148 A.D.3d 1092, 1096, 50 N.Y.S.3d 471 [2d Dept. 2017] [internal quotation marks omitted] ). The entities that Cirocco was required to name as additional insureds were listed in exhibits to the subcontract; Select was not included among those entities.