| Gutierrez v State of New York |
| 2009 NY Slip Op 00506 [58 AD3d 805] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Maria Gutierrez, Claimant, v State of New York,Defendant and Third-Party Claimant-Appellant. Compass Group USA, Inc., Chartwells,Third-Party Defendant-Respondent, et al., Third-Party Defendants. |
—[*1] Gordon & Silber, P.C., New York, N.Y. (Jon D. Lichtenstein of counsel), forrespondent.
In a claim to recover damages for personal injuries, the defendant and third-party claimant,State of New York, appeals, as limited by its brief, from so much of an order of the Court ofClaims (Mignano, J.), dated August 22, 2007, as denied that branch of its motion which was forsummary judgment declaring that the third-party defendant Compass Group USA, Inc.,Chartwells, is obligated to defend it in the main claim and, in effect, granted that branch of thecross motion of the third-party defendant Compass Group USA, Inc., Chartwells, which was forsummary judgment declaring that it is not obligated to defend the State of New York in the mainclaim.
Ordered that the order is affirmed insofar as appealed from, with costs.
In the summer of 2002, Compass Group USA, Inc. (hereinafter Compass), through itsChartwells Division, entered into an agreement to provide food and cafeteria services at the StateUniversity of New York College at Purchase (hereinafter the college). Pursuant to article 19 ofthe agreement, Compass was required, inter alia, to "indemnify, defend, and save harmless" theState of New York against any claim for liability caused by Compass's negligent acts oromissions. Section 19.2 of the agreement further provided that "[n]otification of an event givingrise to an indemnification claim . . . must be received by [Compass] within 30 daysfollowing receipt of such claim," and that any such indemnification claim would be "expresslysubject to and conditioned upon compliance with the Notice provisions hereunder."[*2]
On July 14, 2004, Compass employee Maria Gutierrezwas injured when she slipped and fell on a wet floor inside a rest room in the main dining hall atthe college. On October 8, 2004, Gutierrez served a notice of intention to file a claim on theAttorney General of the State of New York pursuant to Court of Claims Act § 10 (3),alleging that she had been injured as a result of the State's negligence and indicating that shewould commence suit against the State if payment was not made. Gutierrez subsequently filed aclaim against the State seeking to recover damages for personal injuries, and effected service onMarch 24, 2005. Twelve days later, by letter dated April 5, 2005, the Attorney General's officenotified Compass of the Gutierrez claim, and requested that Compass hold the State harmlessand defend it against the claim. After Compass denied the State's request, the State commenced athird-party claim seeking, inter alia, a judgment declaring that Compass was required to defendand indemnify it in the main claim. The State subsequently moved, among other things, forsummary judgment declaring that Compass was required to defend it in the main claim, andCompass cross-moved, inter alia, for summary judgment declaring that it was not so obligated.The Court of Claims denied that branch of the State's motion which was for summary judgmenton this issue and, in effect, granted that branch of the cross motion, concluding that Compasswas not required to defend the State in the main claim because the State had failed to complywith the contractual provision requiring it to provide notice of an event giving rise to anindemnification claim within 30 days of receipt of that claim.
The State now contends that compliance with the 30-day notice requirement was not acondition precedent to Compass' obligation to provide it with a defense because section 19.2 ofthe agreement made only the obligation to indemnify subject to notice. Although this issue israised for the first time on appeal, we may review it because it presents a question of law whichcould not have been avoided if brought to the Court of Claim's attention at the proper junction(see Dugan v Crown Broadway,LLC, 33 AD3d 656 [2006]; Buywise Holding, LLC v Harris, 31 AD3d 681, 682 [2006];Libeson v Copy Realty Corp., 167 AD2d 376, 377 [1990]; Block v Magee, 146AD2d 730, 732 [1989]). However, the State's contention is without merit. In interpreting acontract, the court must read the document as a whole "to determine the parties' purpose andintent, giving a practical interpretation to the language employed so that the parties' reasonableexpectations are realized" (Snug Harbor Sq. Venture v Never Home Laundry, 252 AD2d520, 521 [1998]; see Franklin Apt.Assoc., Inc. v Westbrook Tenants Corp., 43 AD3d 860, 861 [2007]; Queens Best, LLC v Brazal S. Holdings,LLC, 35 AD3d 695, 697 [2006]; Aivaliotis v Continental Broker-Dealer Corp., 30 AD3d 446, 447[2006]). Reading the provisions of article 19 of the agreement which relate to Compass'obligation to defend and indemnify together, and construing them to give effect to the reasonableexpectations of the parties, it is clear that giving timely notice of an event giving rise to anindemnification claim is a condition precedent to Compass' obligation to defend as well as toindemnify the State.
Furthermore, the Court of Claims properly concluded that the State did not give Compasstimely notice of the event giving rise to the indemnification claim. Ascribing the term "claim" itsordinary meaning as a demand for money or other legal remedy to which one asserts a right(see Black's Law Dictionary [8th ed 2004]; see also Andy Warhol Found. for VisualArts, Inc. v Federal Ins. Co., 189 F3d 208, 215-216 [1999]; Home Ins. Co. of Illinois(N.H.) v Spectrum Info. Tech., Inc., 930 F Supp 825, 846 [1996]), the State's obligation toprovide notice was triggered when it received Gutierrez's notice of intention to file a claim,which demanded compensation for the injuries she had allegedly sustained in the accident.Accordingly, the notification which the State gave Compass only after the commencement ofthis suit was untimely. Prudenti, P.J., Dillon, Eng and Leventhal, JJ., concur.