Opinion
Index 813297/2015
11-12-2021
LORI J. OLIVIERI Plaintiff v. BARNES & NOBLE, INC., and STOLTZ REAL ESTATE PARTNERS Defendants BARNES & NOBLE, INC. Third-Party Plaintiff v. NATIONAL JANITORIAL SOLUTIONS INCORPORATED, ANTHONY CHES TLC CLEANING and ANTHONY CHES INDIVIDUALLY Third-Party Defendants NATIONAL JANITORIAL SOLUTIONS INCORPORATED Second Third-Party Plaintiff v. RJS JANITORIAL, LLC Second Third-Party Defendant
Unpublished Opinion
PRESENT: HON. DIANE Y. DEVLIN Presiding Justice
AMENDED DECISION AND ORDER
DIANE Y. DEVLIN, J.S.C.
Upon the foregoing papers, it is ordered that the motion is GRANTED and cross motion is DENIED.
The following papers were read on this Motion for Summary Judgment and Cross Motion for Summary Judgment.
Notice of Motion-Affirmation-Exhibits, Docket Numbers 163-189
Notice of Cross Motion-Exhibits, Docket Numbers 191-214
Replying Affirmation-Exhibits, Docket Numbers 215-220
Replying Affirmation, Docket Numbers 221 -222
Plaintiff in this action filed a negligence cause of action against Defendant Barries and Noble as a result of a fall on a reading stage at its store. Barnes and Noble then commenced a Third-Party Complaint against National Janitorial Solutions Inc ("NJS") and Anthony Ches TLC Cleaning and Anthony Ches. National Janitorial Solutions then commenced a Second Third-Party action against RJS Janitorial ("RJS")
All parties agreed to bifurcate discovery between liability and damages. Plaintiffs Complaint was dismissed by Decision and Order filed January 4, 2021 (incorrectly dated January 4, 2020) following the liability-only discovery. Thereafter Barnes and Noble filed a Motion for Summary Judgment for Contractual Indemnification against NJS. Defendant's motion was granted by Decision and Order filed on March 11, 2021.
Third-Party Defendant and Second-Party Plaintiff NJS now files a Motion for Summary Judgment for Contractual Indemnification against RJS. NJS relies on its Master Service Agreement that states that "Contractor shall remain liable for all actions and/or omissions of said Subcontractor." There is general hold harmless language in the agreement. RJS states that it is free from negligence based on affidavits submitted in the litigation.
RJS files a Cross Motion for Summary Judgment to Dismiss the Second Third-Party Complaint because Plaintiffs alleged accident did not arise out of any act or omission of its performance. RJS also argues that attorney fees are not authorized by the Master Service Agreement since they are not referenced in it. RJS relies partly on New York State Thruway v Ketco. 195 A.D.3d 630 (2d Dept. 2021).
The indemnification clause of the Master Service Agreement states that RJS is to hold harmless NJS for all liabilities, claims, actions, lawsuits, demands, costs, losses, damages, and expenses" arising out of acts/omissions of Contractor.
RJS states that New York State Thruway v Ketco, supra is authority for dismissal when it has been determined that negligence or plaintiffs injuries do not arise from third-party defendant. However, in that case, a motion for summary judgment that resulted in a dismissal was affirmed by the Second Department. Presently the Decision and Order granting dismissal is pending review before the Fourth Department.
RJS also argues that it is not responsible for attorneys's fees because the hold harmless clause at issue is silent as to attorney's fees. NJS acknowledges that the clause does not mention attorney's fee specifically, but argues that since it references lawsuits, it follows that attorney's fee are related to lawsuits.
A review of the complete agreement at issue reveals that attorney's fees were contemplated by the parties to the contract in general because attorney's fees are referenced in paragraph 28 relating to the enforcement of the terms of the agreement. In a transaction involving securities sales in which a guaranty agreement only referenced expenses, the Court stated that the language "costs and expenses" was broad enough to be interpreted to encompass attorney's fees."Nigri v Liberty Apparel Company. 76 A.D.3d 842 (1st Dept. 2010).
The Court GRANTS Third-Party Defendant NJS's Motion for Summary Judgment subject to an INQUEST on damages and DENIES Second Third-Party Defendant RJS's Cross Motion to Dismiss.