| Arteaga v 231/249 W 39 St. Corp. |
| 2007 NY Slip Op 08378 [45 AD3d 320] |
| November 8, 2007 |
| Appellate Division, First Department |
| Roberth Arteaga, Plaintiff, v 231/249 W 39 Street Corp. etal., Respondents, et al., Defendant. 231/249 W 39 Street Corp., et al., Third-PartyPlaintiffs-Respondents, v Ballet Makers, Inc., Doing Business as Capezio, Third-PartyDefendant-Appellant-Respondent. Ballet Makers, Inc., Doing Business as Capezio, SecondThird-Party Plaintiff-Appellant-Respondent, v LWC Corporate, Inc., et al., Second Third-PartyDefendants-Respondents-Appellants, et al., Second Third-PartyDefendant. |
—[*1] Molod Spitz & DeSantis, P.C., New York City (Marcy Sonneborn of counsel), forrespondents-appellants. Law Office of Carol R. Finocchio, New York City (Lisa M. Comeau of counsel), forrespondents.
Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered December 22,2006, which, to the extent appealed from, granted the cross motion of third-party plaintiffs [*2]231/249 W 39 Street Corp. et al. (the owners) for summaryjudgment against third-party defendant Ballet Makers (Capezio); denied Capezio's cross motionfor summary judgment dismissing the owners' third-party complaint; denied the owners' andCapezio's respective cross motions for summary judgment against the LWC second third-partydefendants; denied the LWC parties' motion for summary judgment dismissing the secondthird-party complaint; and declared that Capezio was entitled to insurance coverage to the extentthe LWC parties procured insurance listing Capezio as an additional insured, unanimouslyreversed, on the law, without costs, the owners' cross motion denied, Capezio's cross motion forsummary judgment to dismiss the third-party complaint granted, the LWC parties' motion forsummary judgment dismissing the second third-party complaint granted, and the declarationvacated. The Clerk is directed to enter judgment accordingly.
The lease obligates Capezio to indemnify the owners only for costs "for which Owner shallnot be reimbursed by insurance." Further, each party "waives any claim . . .insofar as such claim is based on a risk insured under any insurance policy carried by the waivingparty" (emphasis added). Capezio and the LWC parties submitted affirmations that the ownershad insurance covering the claims asserted by plaintiff, a painter employed by nonparty IBS whowas injured when he fell from a scaffold. As the owners did not contradict these assertions, theyare deemed admitted (see Kuehne & Nagel v Baiden, 36 NY2d 539, 544 [1975]).Sophisticated commercial parties such as these owners and Capezio are permitted "to allocate therisk of liability to third parties by the procurement of liability insurance" (Morel v City ofNew York, 192 AD2d 428, 429 [1993]). Unambiguous language in a lease should beenforced (see e.g. W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). Thus, theowners' claims for contractual and common-law indemnification against Capezio should havebeen dismissed.
The claim for common-law indemnification against Capezio fails for the independent reasonthat it did not supervise or control plaintiff's work (see Kemp v Lakelands Precast, 55NY2d 1032 [1982]; cf. Felker v Corning Inc., 90 NY2d 219, 226 [1997]). The owners'contention that Capezio had authority to direct, supervise or control plaintiff's work is not onlyunsupported by the evidence, but is contradicted by the deposition testimony of Capezio'scorporate facilities/safety manager. In any event, mere authority to supervise does notrender Capezio liable to the owners (see e.g. Buccini v 1568 Broadway Assoc., 250AD2d 466, 468-469 [1998]). The fact that Capezio might have been liable in a direct suit byplaintiff under Labor Law § 240 (1) (see e.g. Bart v Universal Pictures, 277 AD2d4, 5 [2000]) does not mean Capezio is obliged to indemnify the owners (see Diamond v Bankof N.Y., 199 AD2d 65 [1993]; D'Amico v Manufacturers Hanover Trust Co., 177AD2d 441, 443 [1991]).[*3]
Dismissal of the third-party complaint leaves no basis forthe second third-party complaint, and renders academic all arguments about the LWC parties'liability. Concur—Andrias, J.P., Saxe, Nardelli, McGuire and Malone, JJ.