Opinion
102928/11, 14958A, 590529/11, 590626/11, 14958.
04-28-2015
Mary SMITH, etc., Plaintiff, v. HUNTER ROBERTS CONSTRUCTION CORP., LLC, et al., Defendants–Respondents, J. Petrocelli Contracting, Inc., Defendant–Appellant, Gouverneur Healthcare Services, Inc., Defendant. [And a Third–Party Action] Hunter Roberts Construction Corp., LLC, et al., Second Third–Party Plaintiffs–Respondents, v. R. Smith Restoration, Inc., Second Third–Party Defendant–Appellant.
Brody & Branch, LLP, New York (Mary Ellen O'Brien of counsel), for J. Petrocelli Contracting, Inc., appellant. Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for R. Smith Restoration, Inc., appellant. London Fischer LLP, New York (Scott M. Shapiro of counsel), for respondents.
Brody & Branch, LLP, New York (Mary Ellen O'Brien of counsel), for J. Petrocelli Contracting, Inc., appellant.
Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for R. Smith Restoration, Inc., appellant.
London Fischer LLP, New York (Scott M. Shapiro of counsel), for respondents.
TOM, J.P., SWEENY, MANZANET–DANIELS, CLARK, KAPNICK, JJ.
Opinion Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 28, 2014, which, to the extent appealed from as limited by the briefs, granted defendants Hunter Roberts Construction Group LLC, Dormitory Authority of the State of New York, the City of New York, and New York City Health and Hospitals Corporation's (together, the moving defendants) motion for summary judgment on their cross claims against J. Petrocelli Contracting Inc. for contractual indemnification, and order, same court, Justice and entry date, which granted the moving defendants' motion for summary judgment on their third-party claims against third-party defendant R. Smith Restoration, Inc. (RSR) for contractual indemnification, unanimously reversed, on the law, without costs, and the motions denied.
The indemnification provisions at issue require defendant Petrocelli and third-party defendant RSR to indemnify the moving defendants for incidents arising from their work on a construction project at the Gouverneur Healthcare Services, Inc. (GHS) facility (the GHS Project). The moving defendants seek indemnification from Petrocelli and RSR for the death of Richard Smith, the principal of RSR, a subcontractor hired by Petrocelli on the GHS Project, when he fell from the roof of a building under construction. It is uncontested that Richard Smith's death may have been suicide.
The IAS Court erred in concluding that moving defendants were entitled to summary judgment on the basis that Richard Smith's fatality occurred within the scope of his work. Even giving the indemnity provisions at issue the broadest possible construction, it cannot be said as a matter of law that the loss arose out of RSR's work on the project, especially given the testimony that RSR had ceased working on the GHS Project before the date of the incident. “ ‘The 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 facts and circumstances' ” (Republic Natl. Bank of N.Y. v. Zimmcor U.S.A. Corp., 203 A.D.2d 107, 110, 609 N.Y.S.2d 907 [1st Dept.1994], quoting Hooper Assocs. v. AGS Computers, Inc., 74 N.Y.2d 487, 491–492, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989] ).
We have considered the moving defendants' remaining contentions, and find them unavailing.