| Ostuni v Town of Inlet |
| 2009 NY Slip Op 05672 [64 AD3d 854] |
| July 2, 2009 |
| Appellate Division, Third Department |
| James Ostuni, Respondent, v Town of Inlet, Defendant andThird-Party Plaintiff-Appellant. Smith Construction, LLC, Third-PartyDefendant-Respondent. |
—[*1] Walter D. Kogut, P.C., Syracuse (Walter D. Kogut of counsel), for respondent. Law Office of Epstein & Rayhill, Latham (Jeffrey T. Culkin of counsel), for third-partydefendant-respondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Giardino, J.), entered March 31,2008 in [*2]Hamilton County, which, among other things, denieddefendant's motion for summary judgment on its contractual indemnification claim againstthird-party defendant.
Defendant contracted with third-party defendant, Smith Construction, LLC, to build a saltand sand storage facility in the Town of Inlet, Hamilton County. Although the contract providedthat Smith was generally responsible for the construction and its supervision, defendant agreed toperform the excavation, backfill and foundation work for the project. The contract also containedan indemnification clause in favor of defendant that forms the basis of this appeal.
During the course of construction, plaintiff, an employee of Smith, fell to the ground whileattempting to descend a ladder that had been used by workers to access the building's roof.Seeking to recover for his injuries, he commenced an action against defendant pursuant to LaborLaw §§ 200, 240 and 241. Defendant then impleaded Smith, asserting its right toindemnification under the contract. Thereafter, defendant moved for summary judgmentdismissing plaintiff's Labor Law § 200 claim and granting it contractual indemnificationfrom Smith. Plaintiff cross-moved for partial summary judgment on his Labor Law § 240claim. Supreme Court granted plaintiff's cross motion and denied defendant's motion forsummary judgment dismissing plaintiff's Labor Law § 200 claim as academic in light ofits disposition on the Labor Law § 240 claim. The court also denied defendant's motion forsummary judgment on its indemnification claim against Smith, reasoning that theindemnification clause violated General Obligations Law § 5-322.1 (1) such that it wouldbe enforceable only if defendant were found not to have been actively negligent. The court thenfound that triable issues of fact remained with respect to that question and that summaryjudgment was therefore inappropriate. Defendant now appeals.[FN*]
General Obligations Law § 5-322.1 (1) voids indemnification clauses in constructioncontracts that "purport[ ] to indemnify or hold harmless the promisee against liability for damagearising out of bodily injury to persons . . . contributed to, caused by or resultingfrom the negligence of the promisee . . . whether such negligence be in whole or inpart." Here, had the indemnification clause required Smith to indemnify defendant for injuriesarising out of defendant's own negligence, it would indeed violate General Obligations Law§ 5-322.1 (1) and [*3]would thus be enforceable only inthe event that defendant was free from active negligence, its liability instead being merelyimputed or vicarious (see Potter v M.A. Bongiovanni, Inc., 271 AD2d 918, 918-919[2000]; Severino v Schuyler Meadows Club, 225 AD2d 954, 956-957 [1996]). However,because the indemnification clause at issue here, by its plain terms, does not violate GeneralObligations Law § 5-322.1 (1), we now modify by granting defendant's motion forsummary judgment on its contractual indemnification claim.
The clause requires Smith to indemnify defendant for "damages, losses, and expenses. . . but only to the extent caused in whole or in part by negligent acts or omissionsof [Smith]." Such partial indemnification agreements do not indemnify the promisee for lossesattributable to the promisee's own negligence and therefore do not run afoul of the statute (see Brooks v Judlau Contr., Inc., 11NY3d 204, 207-211 [2008]; Hayes v City of New York, 279 AD2d 610 [2001];Kowalewski v North Gen. Hosp., 266 AD2d 114, 114-115 [1999]; cf. Itri Brick &Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 796 [1997]). In addition, the clauseobligates Smith to indemnify defendant only "[t]o the fullest extent permitted by law." Thislimiting language alone operates to insulate the clause from the ambit of General ObligationsLaw § 5-322.1 (1) (see Brooks v Judlau Contr., Inc., 11 NY3d at 210 and n 4; Bink v F.C. Queens Place Assoc.,LLC, 27 AD3d 408, 409 [2006]). Accordingly, Supreme Court should have granteddefendant's motion for summary judgment on its claim for contractual indemnification fromSmith, and this matter must be remitted for an apportionment hearing to determine the amount ofindemnification to which defendant is entitled (see Bink v F.C. Queens Place Assoc.,LLC, 27 AD3d at 409).
Mercure, J.P., Rose, Stein and Garry, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as denied defendant's motion for summaryjudgment on its cause of action against third-party defendant for contractual indemnification;motion granted and summary judgment awarded to defendant to said extent, and matter remittedto the Supreme Court for further proceedings not inconsistent with this Court's decision; and, asso modified, affirmed.
Footnote *: Although the notice of appealstates that defendant challenges "each and every part" of Supreme Court's order, its briefaddresses only the court's denial of its motion for summary judgment on its claim for contractualindemnification. Defendant has therefore abandoned any argument that the court improperlygranted plaintiff's cross motion for summary judgment on his Labor Law § 240 claim anddenied as academic defendant's motion for summary judgment dismissing the Labor Law §200 claim (see Thurman v UnitedHealth Servs. Hosps., Inc., 39 AD3d 934, 937 [2007], lv denied 9 NY3d 807[2007]).