Opinion
600825/07.
Decided March 25, 2008.
Plaintiff was represented by Harvey Gladstein, Esq., of Harvey Gladstein and Partners, LLC, New York, NY.
Defendants were represented by Laura Mattera, Esq., of Nicoletti, Gonson, Spinner Owen, LLP, New York, NY.
Plaintiff St. Nicholas Cathedral of the Russian Orthodox Church in North America (St. Nicholas) moves pursuant to CPLR 3211(b) to dismiss defendants' affirmative defenses, and for summary judgment in its favor in this action to recover attorney's fees and costs incurred in connection with an underlying lawsuit. Plaintiff also seeks the imposition of sanctions pursuant to 22 NYCRR 130-1.1, arguing that defendants' opposition to the complaint is patently meritless. Defendants Colonial Cooperative Insurance Company (Colonial) and JSC of Antonov, Inc. (JSC) cross-move for summary judgment in their favor.
The underlying lawsuit, Deljanin v St. Nicholas (NY County index number 105998/04), arose from an October 13, 2003 accident in which Zehra Deljanin alleges that she suffered serious injuries when she walked into a cherry picker parked near St. Nicholas Cathedral. She did not see it because she was distracted while searching for a ringing cell phone in her purse. The cherry picker was parked on the roadway adjacent to the sidewalk, and its arm traversed the sidewalk. The cherry picker was leased by JSC, which had been hired by St. Nicholas to perform renovation work on the Cathdral. At the time of the accident, the cherry picker was being operated by a church volunteer who had been trained to use it by JSC. A justice of this court held that the volunteer was working for JSC at the time of the accident, and granted partial summary judgment to St. Nicholas on its cross-claim against JSC, with damages to be determined at the time of trial, but she refused to dismiss the plaintiff's negligence claim against St. Nicholas or JSC (Decision/Order, Deljanin v St. Nicholas, May 22, 2006, annexed to Complaint at Ex. D [hereinafter referred to as the May 22, 2006 Decision]). The court found that although Deljanin's injury may be the result of her own negligence, the degree of comparable fault was properly an issue for the jury.
The court denied JSC's motion to reargue, and in the process, further described St. Nicholas's cross-claim as one for common law indemnification (Decision/Order, Deljanin v St. Nicholas, August 3, 2006, annexed to Complaint at Ex. E). The court's computer records show that the matter was referred to Part 40 for trial after the May 22, 2006 Decision, and four pre-trial conferences were scheduled. The matter was marked settled before trial at the last conference on November 6, 2006.
St. Nicholas's cross-claim against JSC sought indemnification "in the event that it is found that [St. Nicholas is] liable to plaintiffs in whole or in part", and includes a demand for attorney's fees and costs (Notice of Cross Motion, Ex. A, paragraphs Eleventh-Twelfth).
JSC settled Deljanin's lawsuit for $125,000. Colonial was JSC's insurance carrier. St. Nicholas refused to participate in the settlement. No trial was held on St. Nicholas's claim for common law indemnification damages.
St. Nicholas claims that it incurred legal fees and costs in the underlying action in the amount of $101,279.87. It demanded payment in January 2007, and was refused.
The contract between JSC and St. Nicholas included an indemnification clause that stated as follows:
To the fullest extent permitted by law, and to the extent claims, damages, losses or expenses are not covered by Project Management Protective Liability Insurance purchased by the Contractor in accordance with Paragraph 16.3, the Contractor shall indemnify and hold harmless the Owner . . . from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death . . . but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.
Contract, Notice of Cross-Motion, Ex. D, at Article 8, section 8.13.1 (emphasis added). By its terms, the indemnification applies only to the extent that damages arising from the work are caused by the negligence of JSC or anyone working for it.
In this lawsuit, St. Nicholas alleges a single cause of action for common law indemnification in reliance upon the May 22, 2006 Decision. It argues that if it were found liable in the underlying action, said liability would be purely vicarious. The motion by St. Nicholas further demands recovery under an unpleaded contractual indemnification theory.
DISCUSSION
On its face, the complaint provides no basis for St. Nicholas's claim against Colonial. St. Nicholas does not allege that it was an insured under a Colonial policy; the only claim against Colonial is that it was JSC's insurance carrier in the underlying action. Accordingly, the cross-motion is granted with respect to the claim against Colonial, and the complaint is dismissed as against it.
The gist of the complaint as against JSC is that St. Nicholas prevailed on its motion for summary judgment on its cross-claim in the underlying action, so it is entitled to recover costs and attorney's fees. The cross-claim in the underlying action is addressed only to JSC's liability in the event St. Nicholas was found liable to plaintiffs in whole or in part. The May 22, 2006 Decision granted St. Nicholas's cross-claim, and reserved the issue of damages for trial. However, St. Nicholas did not pursue that issue to trial, and its papers do not address why, or even if, it abandoned its claim in the underlying action.
With respect to St. Nicholas's contractual indemnification claim, the claim would be dismissed even if cleanly pleaded because JSC's express contractual obligation is triggered only to the extent that the alleged injury is caused by JSC's negligence. There has been no finding of negligence on JSC's part.
The common law indemnification claim also is dismissed. The general rule is that common law indemnity (also called implied indemnity) will arise in favor of one who is compelled to pay for another's wrong ( Margolin v New York Life Ins. Co., 32 NY2d 149, 152). "Where payment by one person is compelled, which another should have made . . . a contract to reimburse or indemnify is implied by law ( McDermott v City of NY, 50 NY2d 211, 217 [citations omitted]). A claim for common law indemnification will not lie where there is no basis for finding that the alleged indemnitor breached a duty owed to either the injured party or to the indemnitee (23 NY Jur2d Contribution, Indemnification and Subrogation § 88). "While technically an action for indemnfication does not arise until a party has been forced to pay damages that were caused by someone else, New York law permits the party seeking indemnification to commence an action prematurely, so that all claims can be tried and resolved in a single proceeding" (NY Practice, Torts § 10:30).
St. Nicholas appropriately brought its indemnification claim in the underlying action, and the issue of what damages it incurred, if any, was reserved for trial. Although the May 22, 2006 Decision does not specifically say so, it appears to have been a conditional grant of indemnification in favor of St. Nicholas in the event that it was found liable to Deljanin. That never happened, and JSC was never found to have breached a duty to Deljanin or to St. Nicholas, so St. Nicholas's claim has not ripened. St. Nicholas's claim in the underlying action may have survived the settlement between JSC and Deljanin (see Torrioni v Unisul, Inc., 214 AD2d 314 [1st Dept 1995]), but that issue is not before the court, and is properly addressed to the judge presiding over that action rather than to a new judge in a different action.
As part of its motion, St. Nicholas also seeks to strike defendants' affirmative defenses. Of the eight affirmative defenses, some of them clearly are boilerplate responses that seem to have nothing to do with this lawsuit. For example, the fifth affirmative defense alleges that plaintiff's injuries were caused, contributed to or aggravated by intervening causes, and the sixth affirmative defense alleges that plaintiff lacks capacity to sue. St. Nicholas seeks to sanction defendants for frivolous litigation conduct under 22 NYCRR 130-1.1. That part of St. Nicholas's motion is granted in part because some of the affirmative defenses are not grounded in law or fact, so that it is entitled to $100 as the costs of this motion to be credited as set forth below. Accordingly, it hereby is
ORDERED that the motion by St. Nicholas is granted to the extent that it is awarded $100 as the costs of this motion, and otherwise is denied; and it further is
ORDERED that the cross-motion by defendants is granted, and the complaint is dismissed, and the Clerk shall enter judgment accordingly, with costs and disbursements as taxed, less $100 as the costs of this motion awarded in the first decretal paragraph.