| Luby v Rotterdam Sq., L.P. |
| 2008 NY Slip Op 00154 [47 AD3d 1053] |
| January 10, 2008 |
| Appellate Division, Third Department |
| Thomas J. Luby, Respondent, v Rotterdam Square, L.P.,Respondent, and Clifford H. Quay & Sons, Inc., Appellant, et al.,Defendant. |
—[*1] Capasso & Massaroni, L.L.P., Schenectady (John R. Seebold of counsel), for Thomas J.Luby, respondent. Cooper, Erving & Savage, L.L.P., Albany (David C. Rowley of counsel), for RotterdamSquare, L.P., respondent.
Peters, J. Appeals (1) from an order of the Supreme Court (Reilly, Jr., J.), entered January 17,2007 in Schenectady County, which, among other things, denied a motion by defendant CliffordH. Quay & Sons, Inc. for summary judgment dismissing the complaint against it, and (2) from anorder of said court, entered May 10, 2007 in Schenectady County, which, upon reargument,denied a cross motion by defendant Rotterdam Square, L.P. for summary judgment on itsindemnification cross claim.
As part of the construction of the Rotterdam Mall in 1988 in the Town of Rotterdam,Schenectady County, defendant Clifford H. Quay & Sons, Inc. entered into a contract with [*2]defendant Rotterdam Square, L.P., which included, as here relevant,the construction of sidewalks and handicapped accessible ramps outside the mall. The contractdirected that such construction be performed pursuant to the architectural plans drawn bydefendant Marc Weissman & Associates, Inc. It is undisputed that Quay's construction of suchsidewalks and ramps was performed pursuant to such plans and as further directed by RotterdamSquare's construction manager, Wilmorite. Upon Quay's completion of its work, it was approvedby Wilmorite as well as the Town.
In April 2002, 14 years after Quay completed construction, plaintiff fell when he stepped onthe transition flare of a handicapped ramp constructed by Quay. Due to the injuries he sustained,this action was commenced against Rotterdam, Weissman and Quay; Rotterdam cross-claimedagainst Quay for contractual indemnification and Quay moved for summary judgment dismissingplaintiff's complaint. Rotterdam then cross-moved for summary judgment on its indemnificationcross claim against Quay. Supreme Court denied Quay's motion for summary judgment yetawarded such relief to Rotterdam regarding Quay. Upon Quay's motion for renewal andreargument, Supreme Court again denied Quay's motion for summary judgment, but vacated itsaward of summary judgment to Rotterdam. Only Quay appeals.
A threshold question in this negligence action is whether Quay owed a duty of care toplaintiff (see Church v Callanan Indus., 99 NY2d 104, 110-111 [2002]; Espinal vMelville Snow Contrs., 98 NY2d 136, 138 [2002]). Typically a breach of a contractualobligation will not be sufficient to impose tort liability in favor of a third party unless one ofthree conditions is established (see Church v Callanan Indus., 99 NY2d at 111-112;Espinal v Melville Snow Contrs., 98 NY2d at 140; Dennebaum v Rotterdam Sq., 6 AD3d 1045, 1046 [2004]). As hererelevant, we must decide whether Quay's construction of the handicapped ramp met one of thosethree conditions, i.e., did Quay " 'launch[ ] a force or instrument of harm' " (Espinal vMelville Snow Contrs., 98 NY2d at 141, quoting Moch Co. v Rensselaer Water Co.,247 NY 160, 168 [1928]; accord Dennebaum v Rotterdam Sq., 6 AD3d at 1046-1047). Insupport thereof, plaintiff submitted the affidavit of Joseph Bianchine, an engineer, whichexplained that the slope of the transition flares of the ramp did not conform to the New YorkState Fire Prevention and Building Code as it existed in 1988. Upon that basis, plaintiff contendsthat Quay should have known that constructing the ramp in this manner created a dangerouscondition.
Plaintiff's proffer fails as a matter of law. As Quay's construction of the ramp conformed tothe architectural drawings implemented under the direction of Wilmorite, and with Wilmoriteand the Town having inspected and approved Quay's work after its completion, we cannotconclude that even if there was a violation of the Code as it existed in 1988, Quay's constructionof such ramp rose to the requisite standard of creating a dangerous condition so as to " 'launch[ ]a force or instrument of harm' " (see Espinal v Melville Snow Contrs., 98 NY2d at 141,quoting Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]; accordDennebaum v Rotterdam Sq., 6 AD3d at 1046-1047).
Next deciding whether Quay is entitled to summary judgment dismissing Rotterdam's crossclaim for contractual indemnification, as Quay now argues, we note that despite the fact thatQuay did not move for such relief, we may nonetheless search the record and grant suchjudgment if appropriate (see CPLR 3212 [b]; Via Health Home Care, Inc. v New York State Dept. of Health, 33AD3d 1100, 1102 [2006]; Falsitta v Metropolitan Life Ins. Co., 279 AD2d 879, 881[2001]). Recognizing that each provision of the contract must be harmonized with all otherprovisions (see Matter of Bombay Realty Corp. v Magna Carta, 100 NY2d 124, 127[*3][2003]), and that when it comes to an indemnity provision, thelanguage "must be strictly construed to avoid reading into it a duty which the parties did notintend to be assumed" (Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]), weare cautioned against finding that obligation unless both the language and purpose of theagreement indicates that it was clearly intended (see id. at 491-492; Szalkowski vAsbestospray Corp., 259 AD2d 867, 869 [1999]). We do not read this provision to soindicate.
The indemnification clause at issue relates to Quay's obligation to comply with all applicablelaws and ordinances during its performance of the work "in order to complete the workcontemplated in th[at] Agreement." This interpretation is in harmony with other parts of theagreement, which include a separate clause for indemnification regarding damages to persons orproperty caused by Quay during its performance of the work. As our interpretation comports withthe " 'apparent object of the parties' " (Inman v Binghamton Hous. Auth., 3 NY2d 137,147 [1957], quoting Gillet v Bank of Am., 160 NY 549, 555 [1899]) and we have, inother circumstances, refused to place a burden upon a contractor "which he did not expresslyassume and which it is inconceivable he would have accepted" (Inman v Binghamton Hous.Auth., 3 NY2d at 148; see Mobil Oil Corp. v Wellpoint Dewatering Corp., 110AD2d 1085, 1086 [1985]), we will dismiss Rotterdam's claim for contractual indemnification asa matter of law (see Dennebaum v Rotterdam Sq., 6 AD3d at 1047).
Mercure, J.P., Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the orders aremodified, on the law, with costs to defendant Clifford H. Quay & Sons, Inc., by reversing somuch thereof as denied said defendant's motion for summary judgment; motion granted,complaint dismissed against said defendant and summary judgment awarded to said defendantdismissing the cross claim of defendant Rotterdam Square, L.P. for contractual indemnification;and, as so modified, affirmed.