| Barnes v New York City Hous. Auth. |
| 2007 NY Slip Op 06615 [43 AD3d 842] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Adelaide Barnes, Plaintiff, v New York City HousingAuthority et al., Defendants. (And Third-Party Actions.) (Action No. 1.) Geneva Threats et al.,Plaintiffs, v New York City Housing Authority, Defendant and Third-Party Plaintiff, et al.,Defendant. Adel-Fia Contracting, Inc., et al., Third-Party Defendants; Sears, Inc., Third-PartyDefendant-Appellant; Professional Floor Covering Installation, Inc., Third-PartyDefendant-Respondent. (Action No. 2.) Deborah Cavalieri et al., Plaintiffs, v New York CityHousing Authority, Defendant and Third-Party Plaintiff, et al., Defendant. Adel-Fia Contracting,Inc., et al., Third-Party Defendants; Sears, Inc., Third-Party Defendant-Appellant; ProfessionalFloor Covering Installation, Inc., Third-Party Defendant-Respondent. (Action No. 3.) Cori Bopp,Plaintiff, v New York City Housing Authority, Defendant and Third-Party Plaintiff, et al.,Defendant. Adel-Fia Contracting, Inc., et al., Third-Party Defendants; Sears, Inc., Third-PartyDefendant-Appellant; Professional Floor Covering Installation, Inc., Third-PartyDefendant-Respondent. (Action No. 4.) Dorothy Meehan et al., Plaintiffs, v City of New York,Defendant, and New York City Housing Authority, Defendant and Third-Party Plaintiff. Adel-FiaContracting, Inc., et al., Third-Party Defendants; Sears, Inc., Third-Party Defendant-Appellant;Professional Floor Covering Installation, Inc., Third-Party Defendant-Respondent. (Action No.5.) Angel Morales, Plaintiff, v City of New York, Defendant, and New York City HousingAuthority, Defendant and Third-Party Plaintiff. Adel-Fia Contracting, Inc., et al., Third-PartyDefendants; Sears, Inc., Third-Party Defendant-Appellant; Professional Floor CoveringInstallation, Inc., Third-Party Defendant-Respondent. (Action No. 6.) Iris Anderson, Plaintiff, vNew York City Housing Authority, Defendant and Third-Party Plaintiff. Imperial Fire ProtectionCorp. et al., Third-Party Defendants; Professional Floor Covering Installation, Inc., Third-PartyDefendant-Respondent; Sears, Inc., Third-Party Defendant-Appellant, et al., Third-PartyDefendants. (Action No. 7.) |
—[*1] Cartafalsa, Slattery, Turpin & Metaxas, New York, N.Y. (Raymond F. Slattery of counsel),for Professional Floor Covering Installation, Inc., third-party defendant-respondent in action Nos.2, 3, 4, 5, 6, and 7.
In seven related actions, inter alia, to recover damages for personal injuries, Sears, Inc., athird-party defendant in action Nos. 2, 3, 4, 5, and 6 and a second third-party defendant in actionNo. 7, appeals, as limited by its notice of appeal and brief, from so much of an order of theSupreme Court, Kings County (Solomon, J.), dated October 26, 2005, as denied that branch of itsmotion which was for summary judgment on its cross claims for contractual indemnificationagainst Professional Floor Covering Installation, Inc., a third-party defendant in action Nos. 2, 3,4, 5, 6, and 7.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the appellant's motion which was for summary judgment on its cross claims forcontractual indemnification against Professional Floor Covering Installation, Inc., a third-partydefendant in action Nos. 2, 3, 4, 5, 6, and 7 is granted.
On December 18, 1998 three New York City firefighters were killed and seven tenantsinjured as a result of a fire which erupted in an apartment building owned and operated by theNew York City Housing Authority (hereinafter the NYCHA). The fire started, in an apartmentoccupied by Jacquelyn Pinder, a third-party defendant in action Nos. 2, 3, 4, 5, 6, and 7. Severaldays prior to the fire, Sears, Inc. (hereinafter Sears), a third-party defendant in action Nos. 2, 3, 4,5, and 6, and second third-party defendant in action No. 7, sold wall-to-wall carpeting to Pinderand contracted with Professional Floor Covering Installation, Inc. (hereinafter PFCI), athird-party defendant in action Nos. 2, 3, 4, 5, 6, and 7, to install it.
Wrongful death and personal injury actions were brought against the NYCHA, asserting,inter alia, that its negligence rendered inoperable the building's hallway sprinkler system and theself-closing hinges to Pinder's front door, thus causing the build-up of heat and smoke whichkilled the firefighters and injured the tenants. The NYCHA then commenced third-party actionsagainst Sears and PFCI, alleging, inter alia, that the height of the carpet interfered with theoperation of Pinder's apartment door's self-closing mechanism, and that the carpet installerremoved or disabled the self-closing mechanism. Sears then cross-claimed, inter alia, forcontractual indemnification against PFCI.
The subject indemnification provision in the contract between Sears and PFCI stated thatPFCI agreed "to protect and indemnify [Sears] from all claims or demands on account of injuryto persons or property occurring . . . as a result of said installation." Sears moved,inter alia, for summary judgment on its contractual indemnification cross claims against PFCI.The Supreme Court denied that branch of Sears's motion which was for summary judgment on itscontractual indemnification cross claims against PFCI on the ground that triable issues of factexisted as to whether there was any relationship between PFCI's work and the underlying deathsand injuries. We reverse the order insofar as appealed from.
"A party is entitled to full contractual indemnification provided that the 'intention toindemnify can be clearly implied from the language and purposes of the entire agreement and thesurrounding facts and circumstances' " (Drzewinski v Atlantic Scaffold & Ladder Co., 70NY2d 774, [*2]777 [1987]; see Watral & Sons, Inc. v OC Riverhead 58, LLC, 34 AD3d 560,563 [2006]). As Sears correctly contends, the express language of the subject indemnificationagreement obligates PFCI to indemnify it in this matter from claims, such as the ones brought bythe NYCHA against Sears, arising as a result of the carpet installation in the Pinder apartmentperformed by PFCI (see Margolin v New York Life Ins. Co., 32 NY2d 149, 153-154[1973]; Brooklyn Union Gas Co. v Interboro Asphalt Surface Co., 303 AD2d 532,534-535 [2003]). Accordingly, Sears established its prima facie entitlement to judgment as amatter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
In response, PFCI failed to raise a triable issue fact (see Zuckerman v City of New York,49 NY2d 557 [1980]). Although at the time of the Supreme Court's determination of Sears'ssummary judgment motion there was not a finding on the issue of causation, such a finding is notnecessary to trigger the subject indemnification clause. It was triggered when claims werepresented alleging that the installation was a cause of the underlying fire and injuries (see McCleary v City of Glens Falls, 32AD3d 605, 609-610 [2006]). Therefore, the Supreme Court improperly denied that branch ofSears's motion which was for summary judgment on its contractual indemnification cross claimsagainst PFCI.
PFCI's remaining contentions are without merit. Spolzino, J.P., Skelos, Dillon andMcCarthy, JJ., concur.