| Sumba v Clermont Park Assoc., LLC |
| 2007 NY Slip Op 09020 [45 AD3d 671] |
| November 13, 2007 |
| Appellate Division, Second Department |
| Miguel Sumba, Plaintiff, v Clermont Park Associates,LLC, Defendant and Third-Party Plaintiff-Appellant. Clermont Park Residence LLC, Third-PartyDefendant-Respondent. |
—[*1] Melito & Adolfsen, P.C., New York, N.Y. (Robert Ely and Ignatius John Melito of counsel),for third-party defendant-respondent.
In an action, inter alia, to recover damages for personal injuries, the defendant third-partyplaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, KingsCounty (Schmidt, J.), dated July 18, 2006, as granted that branch of the third-party defendant'smotion which was for summary judgment dismissing the cause of action in the third-partycomplaint for contractual indemnification, and denied those branches of its cross motion whichwere for summary judgment against the third-party defendant on that cause of action and on itscause of action to recover damages for breach of contract except as to its claim for out-of-pocketexpenses incurred as a result of the third-party defendant's failure to procure insurance.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, an employee of M.R.I. Developers Corp. (hereinafter M.R.I.), was injuredwhile performing sheetrocking work at premises owned by the defendant third-party plaintiffClermont Park Associates, LLC (hereinafter Associates), and leased to the third-party defendantClermont Park Residence, LLC (hereinafter Residence). Associates retained M.R.I. to performthe work in order to construct a workspace for Residence. The plaintiff commenced this actionagainst Associates, which thereafter commenced a third-party action against Residence, seeking,inter alia, [*2]contractual indemnification for any liability whichAssociates incurred in connection with the plaintiff's causes of action based upon a provision inthe lease.
The Supreme Court, inter alia, granted Residence's motion for summary judgment dismissingAssociates' cause of action for contractual indemnification, and denied that branch of Associates'motion which was for summary judgment on its cause of action to recover damages for breach ofcontract except as to its claim for out-of-pocket expenses incurred as a result of Residence'sfailure to procure the required amount of insurance. On appeal, Associates contends that theSupreme Court erred in finding that the indemnification clause in the lease was not applicable toa claim asserted by an employee of the contractor, and by limiting its damages on the breach ofcontract cause of action to out-of-pocket expenses.
"When a party is under no legal duty to indemnify . . . [t]he promise should notbe found unless it can be clearly implied from the language and purpose of the entire agreementand the surrounding facts and circumstances" (Hooper Assoc. v AGS Computers, 74NY2d 487, 491-492 [1989]). "[A] contract assuming that obligation must be strictly construed toavoid reading into it a duty which the parties did not intend to be assumed" (id. at 491).The indemnification clause at issue did not specifically include the claims of M.R.I.'s employees.Since it cannot be said that indemnification for claims by employees of M.R.I. was "theunmistakable intent of the parties" (Solomon v City of New York, 111 AD2d 383, 388[1985]), Residence is not required to indemnify Associates under the circumstances herein (see Vigliarolo v Sea Crest Constr.Corp., 16 AD3d 409 [2005]).
Accordingly, the Supreme Court properly denied that branch of Associates' motion whichwas for summary judgment on its cause of action for contractual indemnification againstResidence and properly granted that branch of Residence's cross motion which was for summaryjudgment dismissing that cause of action.
Associates' remaining contention is without merit. Spolzino, J.P., Krausman, Carni andDickerson, JJ., concur.