Opinion
Index No. 109056/07 Index No. 590601/08
10-05-2011
CHARLES WINITCH, Plaintiff, v. 150 TT RGG LLC, HIRO REAL ESTATE ASSOCIATES, L.L.C., HIRO REAL ESTATE L.L.C., PLAZA CONSTRUCTION CORP., HENRY BROS. ELECTRONICS, INC., and CB RICHARD ELLIS GROUP, INC., Defendants. PLAZA CONSTRUCTION CORP., Third-Party Plaintiff, v. HENRY BROS. ELECTRONICS, INC., Third-Party Defendant.
Third Party
MARTIN SHULMAN, J.:
Plaintiff Charles Winitch ("Winitch" or "plaintiff") commenced this negligence personal injury action based upon injuries he sustained on December 20, 2006 when his lower leg became caught in a security turnstile door installed near the main lobby of the building located at 150 East 42nd Street (the "office building") in Manhattan. Defendants 150 TT RGG LLC, CB Richard Ellis Group, Inc. ("CBREG"), Hiro Real Estate Associates, L.L.C. and Hiro Real Estate, L.L.C. (collectively "Owner") own, operate and/or manage the office building.
Defendant/third-party plaintiff Plaza Construction Corp. ("Plaza") is a general contractor which entered into an agreement with the Owner after 9/11 to install security turnstiles at the office building. Defendant/third-party defendant Henry Bros. Electronics, Inc. ("HBE") is a sub-contractor which entered into a trade sub-contract ("Construction Contract") with Plaza dated February 23, 2005 pursuant to which HBE agreed to provide "Turn Key Installation of Turnstiles" that Owner specifically selected. Henry Aff. in Supp. of Motion at ¶ 10; HBE Aff. in Supp. of Motion ¶ 14. Plaza commenced a third-party action against HBE seeking inter alia contractual and common law indemnification, including attorney's fees and costs incurred in Plaza's defense of this action.
Tom Lukaszcyk, Plaza's superintendent, testified Plaza was the project's construction manager and oversaw the turnstiles' installation prior to their being programmed. Lukaszcyk deposition, 02/19/10, at 19: 11-15, 45: 3-7; 48; 2-3, 53: 14-15.
HBE moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and the third-party complaint against it. Plaza cross-moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and for summary judgment on its third-party claims for contractual and common law indemnification, including the attorneys' fees and expenses Plaza incurred in defending this action. Winitch opposes HBE's motion and Plaza partially opposes it. Winitch and HBE both oppose Plaza's cross-motion.
After the motion and cross-motion were submitted, plaintiffs counsel advised the court that Winitch had settled the action and therefore the motion and cross-motion were moot as to plaintiff. The court now addresses the sole remaining branches of the motion and cross-motion pertaining to Plaza's third-party action for defense and indemnification to recover its attorney's fees and costs in this action. Contractual Indemnification
In support of its claim for contractual indemnification Plaza relies on its February 23, 2005 Construction Contract with HBE (Exh. N to Cross-Motion) and a subsequent indemnification and hold harmless agreement dated April 6, 2005 which is attached to the main contract as Exhibit E. Specifically, Article 9 of Exhibit A ("General Conditions") to the Construction Contract provides in relevant part:
The Construction Contract consists of a Trade Subcontract and Exhibits A through H thereto (the "contract documents").
Indemnification and Insurance
A. To the extent permitted by law, each Subcontractor shall indemnify, defend, save and hold the Owner, the Contractor ... harmless from and against all liability, damage, loss, claims, demands and actions of any nature whatsoever which arise out of or are connected with, or claimed to arise out of or be connected with:
1. The performance of work by the Subcontractor, or any act or omission of Subcontractor; . . .
The subsequent indemnification and hold harmless agreement, entitled "Plaza Construction Corporation Hold Harmless", provides in pertinent part:
To the fullest extent permitted by law, the Subcontractor shall indemnify, defend and hold harmless the Owner, Contractor and agents and employees from and against claims, damages, losses and expenses, arising out of or resulting from performance of the work, provided that such claim, damage, loss or expense is attributable to bodily injury ... but only to the extent caused in whole or in part by negligent acts or omissions of the Subcontractor ...
This indemnification includes, but is not limited to, any claims, damages, loss, liability or expense of any kind, which is in any way connected with the work and which is based upon a breach of statutory duty or obligation
on the part of the Contractor where the Contractor is not found to have committed a negligent act or omission. . .
Finally, Plaza cites Article 11 of the main contract, which provides that HBE's failure to comply with any term of the contract documents shall be deemed a default (Article 11.1[A]) entitling Plaza to recover inter alia reasonable attorneys' fees incurred as a result of the default (Article 11.4). Plaza argues HBE's failure to defend and indemnify it in this action constitutes a default entitling Plaza to recover its costs and attorneys' fees.
In opposition, HBE argues that Article 9 and the subsequent hold harmless agreement conflict and should be deemed null and void. Alternatively, should this court find that the later agreement controls, HBE claims the motion is premature because there has been no finding of negligence against HBE.
At the outset, this court agrees with HBE that the two indemnity provisions cited above conflict. The indemnification provided for in Article 9 is far broader than that contained in the April 6, 2005 hold harmless agreement, requiring HBE to defend and indemnify Plaza from all claims arising from or connected with HBE's installation of security turnstiles at the office building. The latter requires a finding of negligence on HBE's part for bodily injury claims arising from its work.
The court must first determine which indemnity provision controls. In doing so, this court "must interpret the agreement so as to carry out the intentions of the parties." Wallace v 600 Partners Co., 86 NY2d 543, 548 (1995). Further, a subsequent contract regarding the same subject matter supersedes the prior contract. Er-Loom Realty, LLC v Prelosh Realty, LLC, 77 AD3d 546, 548 (1st Dept 2010), lv den 16 NY3d 710 (2011); Friedman v Ocean Dreams, LLC, 15 Misc3d 1146(A), 841 NYS2d 819, at *8 (Sup. Ct. Kings 2007), affd 56 AD3d 719 (2008). Here, the subsequent hold harmless agreement governs and as such, Plaza must establish HBE's negligence before the duty to defend and indemnify is triggered. To hold otherwise would render the subsequently executed hold harmless agreement a nullity.
In this case, Plaza is not entitled to indemnification for the costs, attorneys' fees and other expenses incurred in defending this action. There has been no finding of negligence on HBE's part and, on this record, Plaza fails to establish that HBE created or had actual or constructive notice of any defective condition within the turnstile that may have purportedly caused Plaintiff's accident.
Plaintiff's injury occurred in December 2006, approximately 18 months after HBE completed installation of the turnstiles in July 2005. Thereafter, HBE provided the Owner with a one-year warranty that expired on July 31, 2006. Henry Aff. in Supp. of Motion at ¶ 15, 17. HBE offered the Owner the option of purchasing a maintenance contract after the warranty period expired but the Owner declined, relying on the ability to call HBE back as needed. Id. at ¶ 17, 18. HBE performed repair work on the turnstile on April 28, 2006, May 3, 2006 and November 13, 2006. Henry deposition, 08/06/10, at 64. However, nothing in this record links this repair work to Plaintiff's injury.
There being no negligence on HBE's part the claim for common law indemnification must similarly fail. For the foregoing reasons, it is hereby
ORDERED that HBE's motion is granted to the extent that the third-party complaint is dismissed, and the remaining portion of HBE's motion to dismiss the complaint is denied as moot; and it is further
ORDERED that Plaza's cross-motion is denied.
The Clerk is directed to enter judgment accordingly.
The foregoing constitutes the court's Decision and Order. Courtesy copies of the Decision and Order have been provided to counsel for the parties. Dated: New York, New York
October 5, 2011
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Hon. Martin Shulman, J.S.C.