| Martins v Little 40 Worth Assoc., Inc. |
| 2010 NY Slip Op 02866 [72 AD3d 483] |
| April 8, 2010 |
| Appellate Division, First Department |
| Atinsola Martins et al., Plaintiffs, v Little 40 WorthAssociates, Inc., et al., Defendants/Third-Party Plaintiffs-Appellants. Partners Cleaning, LLC,Third-Party Defendant-Respondent. Partners Cleaning, LLC, Second Third-PartyPlaintiff-Respondent, v Twi-Laq Industries, Inc., Second Third-Party Defendant-Respondent,and Chemical Specialties Manufacturing Corporation, Second Third-PartyDefendant-Appellant. |
—[*1] Herzfeld & Rubin, P.C., New York (Michael B. Sena of counsel), for Chemical SpecialtiesManufacturing Corporation, appellant. Martin Clearwater & Bell LLP, New York (Ellen B. Fishman of counsel), for PartnersCleaning, LLC, respondent. Bivona & Cohen, P.C., New York (Anthony J. McNulty of counsel), for Twi-Laq Industries,Inc., respondent.
Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered December 8,2008, which, to the extent appealed from, denied the motion of third-party plaintiffs Little 40[*2]Worth and Newmark for summary judgment againstthird-party defendant Partners Cleaning for breach of contract and indemnification, denied thecross motion of second third-party defendant Chemical Specialties for summary judgmentdismissing the second third-party complaint and all cross claims against it, and granted themotion of second third-party defendant Twi-Laq Industries for summary judgment to the extentof awarding it conditional indemnification against Chemical Specialties, affirmed, without costs.
Plaintiff claimed to have sustained asthma and exposure to hazardous chemical fumes fromthe shampoo used to clean carpets at his place of employment. The product, Formula 161, wasmanufactured by Chemical Specialties and distributed by Twi-Laq.
To establish a relationship between an individual's illness and a toxin suspected of causingsuch illness, a plaintiff must establish (1) his level of exposure to the toxin; (2) generalcausation—that the toxin could in fact cause the illness, and the level of exposure thatwould engender such illness (the dose-response relationship); and (3) specificcausation—the likelihood that this specific toxin did cause the plaintiff's injury (Parker v Mobil Oil Corp., 7 NY3d434, 446 n 2 [2006]). The analysis and calculations of Chemical Specialties's expert werebased on assumptions not supported by the record, namely, the size of the room, the percentageof floor shampooed, and the degree of dilution of Formula 161 used at the time.
Entitlement to full contractual indemnification requires a clear expression or implication,from the language and purpose of the agreement as well as the surrounding facts andcircumstances, of an intention to indemnify (Drzewinski v Atlantic Scaffold & LadderCo., 70 NY2d 774, 777 [1987]). Here, the building owner and manager failed to establishthe terms of the purchase order for carpet-cleaning services.
Common-law indemnification requires proof not only that the proposed indemnitor'snegligence contributed to the causation of the accident, but also that the party seeking indemnitywas free from negligence (Correia v Professional Data Mgt., 259 AD2d 60, 65 [1999]).Here, the building owner and manager did not establish their own freedom from negligence,since there was no evidence that they did not supervise, direct or control the work of thecontractor (see e.g. Uribe v Fairfax,L.L.C., 48 AD3d 336 [2008]).
However, a "distributor of a defective product has an implied right of indemnification asagainst the manufacturer of the product" (Godoy v Abamaster of Miami, 302 AD2d 57,62 [2003], lv dismissed 100 NY2d 614 [2003]). Accordingly, Twi-Laq was entitled toconditional indemnification from Chemical Specialties (see German v Morales, 24 AD3d 246 [2005]).
We have considered appellants' remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Saxe, Abdus-Salaam and RomÁn, JJ.
Nardelli, J., dissents in part in a memorandum as follows: I agree with the majority that themotion court did not err in denying the summary judgment motion by the owner and managingagent of the building seeking contractual indemnification against the carpet cleaning contractor,and the cross motion by the chemical manufacturer for summary judgment dismissing thesecond-third party claim asserted against it by the cleaning contractor. As the majority notes,there are questions of fact concerning the extent of, or lack of, supervision by the building ownerand its agent in the cleaning process, and, as well, as to whether the cleaning contractor wasnegligent in applying the cleaning fluids. Additionally, the record does not support, as themajority notes, any conclusions as to "the size of the room, the percentage of floor shampooed,and the degree of dilution of Formula 161 used [when the carpeting was cleaned]."
Due to the existence of such questions, and, thus, because there is nothing in this recordwhich conclusively establishes the proximate cause of plaintiff's injuries, I submit that it waspremature to grant the cleaning contractor conditional indemnification against ChemicalSpecialties Manufacturing Corp., the manufacturer of the cleaning solution.
Until such time as it is established that the product as manufactured (or as labeled) wasdefective, there is no reason to grant conditional indemnification. As this Court has noted,"[when] it has not yet been determined whether any party's negligence contributed to [an]accident, a finding of common-law indemnity is premature" (Barraco v First Lenox Terrace Assoc., 25 AD3d 427, 429 [2006]).
I believe that the majority's reliance upon Godoy v Abamaster of Miami (302 AD2d57 [2003], lv dismissed 100 NY2d 614 [2003]) is misplaced, since that case involved asituation where there had been a jury finding that a retail distributor, as well as a wholesaledistributor, bore strict liability for selling an unsafe product manufactured by a foreign companyover which jurisdiction could not be obtained. Since there was a finding that the product, a meatgrinder, was itself defective, the court concluded that the distributor in closest privity with themanufacturer should indemnify the more remote distributor, i.e., the retail seller. In this case,however, there has not been any determination by a factfinder that the cleaning solution wasdefective. Thus, there cannot presently be any allocation of liability.
The majority also relies upon German v Morales (24 AD3d 246 [2005]). There, this Court, invacating the dismissal of the complaint, as well as the cross claim for indemnification assertedby the distributor against the manufacturer, made a specific finding, with regard to only onedefendant, that there was a question of fact as to whether a can of lacquer thinner was improperlylabeled, and that such improper labeling was the proximate cause of the plaintiff's injuries. Isubmit that German is inapposite to this case because, as the majority finds, there arequestions of fact as to whether more than one party, including the landlord (for failure tosupervise) and the cleaning contractor (for, inter alia, using too much solution), may also be heldresponsible.
Consequently, until such time as it is determined which party, if any, proximately caused[*3]plaintiff's injuries, or, at least, the field of potentiallyresponsible parties is narrowed to one, the grant of conditional indemnification against any partyis premature. [Prior Case History: 2008 NY Slip Op 33268(U).]