| Wolfe v Irving Tissue, Inc. |
| 2012 NY Slip Op 04259 [95 AD3d 1628] |
| May 31, 2012 |
| Appellate Division, Third Department |
| Malcolm Wolfe et al., Plaintiffs, v Irving Tissue, Inc.,Doing Business as Irving Tissue, Defendant, and Third-Party Plaintiff-Respondent. NorthCountry Janitorial, Inc., et al., Third-Party Defendants-Appellants. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., Albany (Elizabeth Grogan ofcounsel), for Rust Constructors, Inc., third-party defendant-appellant. Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Victor Alan Oliveri ofGibson, McAskill & Crosby, L.L.P., Buffalo, of counsel), for defendant and third-partyplaintiff-respondent.
Spain, J. Appeal from an order of the Supreme Court (Krogmann, J.), entered April 15, 2011in Washington County, which, among other things, denied third-party defendants' motions forsummary judgment dismissing the third-party complaint.
In 1999, in the course of his employment for a nonparty subcontractor, plaintiff MalcolmWolfe slipped on construction debris and fell down a flight of stairs at defendant Irving [*2]Tissue, Inc.'s mill in the Town of Fort Edward, Washington County.Thereafter, plaintiffs commenced this negligence action against Irving[FN1]seeking damages for injuries allegedly sustained in the fall. Irving then commenced a third-partyaction for contribution and indemnity against third-party defendant North Country Janitorial,Inc., which had contracted to provide janitorial services at Irving's mill, and third-party defendantRust Constructors, Inc., which, at the time of the accident, was subject to a "general servicesagreement" to provide "management services" at Irving's mill. North Country subsequentlyasserted a cross claim for contribution and indemnity against Rust.
The third-party action was severed from plaintiffs' original action, and Irving reached asettlement with plaintiffs. Following discovery, North Country and Rust both moved forsummary judgment dismissing the third-party complaint,[FN2]and Rust also moved for summary judgment dismissing North Country's cross claim against it.Supreme Court denied the motions, prompting both North Country and Rust to appeal.
We affirm. North Country argues that its contract with Irving did not include anindemnification provision and, thus, it is under no duty to indemnify or insure Irving as a matterof law. In support of its motion, North Country relies on the undisputed fact that no signeddocument exists in which North Country agreed to indemnify or to provide insurance coverage toIrving. The record establishes that North Country had provided janitorial service at Irving's millin the past, and when Irving sent out a request for bids in January 1998, North Countryimmediately responded with a bid. Thereafter, North Country apparently began providingservices in accordance with the terms of the bid. As neither Irving's solicitation nor NorthCountry's bid included indemnification or insurance provisions, in our view, North Countrysatisfied its initial burden of proof, shifting the burden to Irving to present evidencedemonstrating a triable issue of fact (see CPLR 3212 [b]; Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]).
In opposition, Irving relies on a purchase order it sent to North Country at the end of August1998, wherein Irving requested that janitorial services be continued through the end of the year,and a second order sent in December 1998, requesting the same services for 1999. Each orderexpressly states that it is "subject to . . . the standard terms and conditions forpurchase orders issued by Irving." Irving's "general terms and conditions" includeindemnification and insurance provisions and, according to the affidavit of Irving's formerpurchasing agent, the terms and conditions were attached to the purchase orders sent to NorthCountry. Further, Irving submitted evidence that North Country secured an insurance policy inApril 1999 reflecting the same policy limits as required in Irving's terms and conditions. NorthCountry denies having [*3]ever received a copy of Irving's termsand conditions, and argues that, in any event, no material issue of fact exists precluding summaryjudgment because the parties' contract—arguably formed in 1998—could notunilaterally be changed by Irving's subsequent purchase orders.
We concur with Supreme Court that summary judgment cannot be awarded on this record.Both Irving's 1998 request for bids and North Country's bid appear to anticipate a contract termof one year, which would have expired before plaintiff's accident in 1999. Further, a letter fromIrving to North Country in May 1998 clearly indicates Irving's intent to extend the partiesbusiness relationship through the end of 1998, indicating that the parties' agreement had been forsomething less than a full year. When, at the end of 1998, Irving submitted another purchaseorder seeking janitorial services for 1999, Irving was making an offer to extend the parties'contract. Whether Irving's general terms and conditions were incorporated by reference into thatoffer, and whether North Country accepted those terms through its performance, are issues of factwhich preclude a finding, as a matter of law, that the parties' agreement did not include anindemnification provision (see BrightonInv., Ltd. v Har-Zvi, 88 AD3d 1220, 1222-1223 [2011]; Robison v Sweeney,301 AD2d 815, 817 [2003]).
We turn next to Rust's argument that the third-party complaint against it should have beendismissed. Rust argues that, at the time of the accident, its contract with Irving did not includeany supervisory duties over North Country or, alternatively, that any supervisory duties it hadover North Country were shared by Irving and thus cannot be the basis for indemnification. Theagreement between Rust and Irving contemplates that Rust will "provide management services toinclude the management and performance of maintenance related work for specific assets as wellas the management of general services at various [Irving] sites." Although the agreement doesnot specifically assign housekeeping duties to Rust, it also does not define "managementservices" or the "management of general services," rendering it ambiguous in this regard.
Rust has failed to submit sufficient evidence to resolve this ambiguity as a matter of law.Indeed, Richard Zack, Rust's site manager for the Irving facility, testified that "managementservices" included "running Irving['s] boilers, water treatment plant, waste treatment plant,electrical distribution system as well as snow and external trash removal and generalmaintenance in those areas of operation." Although he stated that housekeeping and janitorialservices were not part of the agreement, and that such services were handled solely by NorthCountry pursuant to North Country's direct contract with Irving, he admitted that his dutiesincluded ensuring that the housekeeping work was completed. Additionally, the solicitation forbids that Irving sent to North Country clearly states that "[a]ll work is supervised by Rust PlantServices" and Irving's bid in response indicates that it is for "[c]leaning services to be rendered. . . to Rust Plant Services (Irving Tissue Plant)." Zack also admitted that he helpedIrving develop specifications for cleaning services to be used by Irving when negotiating itscontract with North Country, that he had weekly meetings with North Country's supervisorregarding the janitorial services, and that he signed weekly time sheets for North Countryemployees. Given that factual issues exist as to the extent, if any, that Rust's managementobligations included supervising North Country's janitorial work, we hold that Supreme Courtproperly denied Rust's motion for summary judgment dismissing the third-party complaint(see Staub v William H. Lane, Inc., 58 AD3d 933, 935 [2009]; United States Fid. & Guar. Co. v DelmarDev. Partners, LLC, 22 AD3d 1017, 1021-1022 [2005]).
Lahtinen, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote 1: Additional contractors andsubcontractors were originally named as defendants in plaintiffs' complaint. This Courtpreviously affirmed the dismissal of the complaint as to certain of those entities (Wolfe v KLR Mech., Inc., 35 AD3d916, 918-920 [2006]), and apparently only Irving now remains as a defendant.
Footnote 2: No dispute exists that Irving'ssettlement with plaintiffs automatically extinguished Irving's third-party contribution claimsagainst North Country and Rust (see General Obligations Law § 15-108), but thatIrving's indemnification claims remain pending.