| Reisman v Bay Shore Union Free School Dist. |
| 2010 NY Slip Op 04762 [74 AD3d 772] |
| June 1, 2010 |
| Appellate Division, Second Department |
| David Reisman et al., Plaintiffs, v Bay Shore Union FreeSchool District et al., Defendants/Third-Party Plaintiffs-Appellants, and D'Aprile, Inc.,Respondent. Craftsman Storefronts & Glass, Inc., Third-PartyDefendant-Respondent. |
—[*1] Mazzara & Small, P.C., Hauppauge, N.Y. (Timothy F. Mazzara of counsel), fordefendant-respondent. Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (AntonPiotroski of counsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, etc., the defendants third-partyplaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court,Suffolk County (Farneti, J.), dated March 18, 2009, as denied those branches of their motionwhich were for conditional summary judgment on their cross claim for contractual identificationagainst the defendant D'Aprile, Inc., and on the third-party cause of action for contractualindemnification.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of coststo the defendants/third-party plaintiffs, and those branches of the motion of thedefendants/third-party plaintiffs which were for conditional summary judgment on their crossclaim for contractual indemnification against the defendant D'Aprile, Inc., and on the third-partycause of action for contractual indemnification are granted.
The injured plaintiff, an employee of the third-party defendant Craftsman Storefronts &Glass, Inc. (hereinafter Craftsman), allegedly was struck by falling bricks at a construction site atBay Shore High School. The plaintiffs thereafter commenced this action against the propertyowner, Bay Shore Union Free School District (hereinafter Bay Shore UFSD), and generalcontractor E.W. Howell Co., Inc. (hereinafter Howell), to recover damages, inter alia, forpersonal injuries, alleging common-law negligence and violations of Labor Law §§200, 240 (1) and § 241 (6). Bay Shore UFSD and Howell (hereinafter together theappellants) asserted cross claims against masonry subcontractor D'Aprile, Inc. (hereinafterD'Aprile), for common-law and contractual indemnification, and commenced a third-party actionagainst Craftsman seeking the same relief.[*2]
After the completion of discovery, the appellants moved,among other things, for conditional summary judgment on their cross claim for contractualindemnification against D'Aprile and on the third-party cause of action for contractualindemnification. The Supreme Court, inter alia, denied those branches of motion which wereaddressed to the contractual indemnification claims, concluding that the appellants failed toestablish, prima facie, that they were not negligent and that their liability, if any, was solelyvicarious. We reverse the order insofar as appealed from.
"The right to contractual indemnification depends upon the specific language of the contract"(George v Marshalls of MA, Inc.,61 AD3d 925, 930 [2009]; seeBellefleur v Newark Beth Israel Med. Ctr., 66 AD3d 807, 808 [2009]; Canela v TLH 140 Perry St., LLC, 47AD3d 743, 744 [2008]). "The promise to indemnify should not be found unless it can beclearly implied from the language and purpose of the entire agreement and the surroundingcircumstances" (George v Marshalls of MA, Inc., 61 AD3d at 930; see HooperAssoc. v AGS Computers, 74 NY2d 487, 491-492 [1989]). In addition, "a party seekingcontractual indemnification must prove itself free from negligence, because to the extent itsnegligence contributed to the accident, it cannot be indemnified therefor" (Cava Constr. Co., Inc. v GealtecRemodeling Corp., 58 AD3d 660, 662 [2009]; see General Obligations Law§ 5-322.1).
Here, contrary to the Supreme Court's determination, the appellants met their initial burdensof demonstrating their entitlement to contractual indemnification (see Alvarez v ProspectHosp., 68 NY2d 320 [1986]). The appellants introduced the subcontract agreements betweenD'Aprile and Howell and Craftsman and Howell, both of which included an expressindemnification clause in favor of Bay Shore UFSD, as owner, and Howell, as generalcontractor, which obligated D'Aprile, "to the maximum extent permitted by law," to indemnifythe appellants for losses or claim "resulting from, arising out of, or in any manner connected with[D'Aprile's work]" (see generallyNaranjo v Star Corrugated Box Co., Inc., 11 AD3d 436, 437-438 [2004]). They alsodemonstrated, prima facie, that they were not negligent by submitting deposition testimonyestablishing that the plaintiff's alleged injuries were sustained as a result of the methods ormaterials used in the subcontractors' work, rather than as a result of a dangerous condition at thesite, and that neither of the two appellants had authority to exercise supervisory control over theplaintiff's work or the subcontractors' work that allegedly caused his injury (see Quilliams v Half Hollow Hills SchoolDist. [Candlewood School], 67 AD3d 763 [2009]).
In opposition, neither D'Aprile nor Craftsman raised a triable issue of fact as to whether therespective contractual indemnification clauses should not be enforced. Although anindemnification agreement which purports to indemnify a party for its own negligence is voidunder General Obligations Law § 5-322.1, such an agreement does not violate thatprovision where, as here, it authorizes indemnification only to the extent permitted by law (see Caballero v Benjamin Beechwood,LLC, 67 AD3d 849 [2009]). Furthermore, the evidence submitted in opposition to themotion merely established that Howell undertook general duties to oversee the work and toensure compliance with safety regulations, which is insufficient to raise a triable issue of fact asto whether the appellants were negligent and, therefore, were not entitled to contractualindemnification (see Quilliams v Half Hollow Hills School Dist. [Candlewood School],67 AD3d at 763; Enriquez v B & DDev., Inc., 63 AD3d 780 [2009]; McLeod v Corporation of Presiding Bishop of Church of Jesus Christ ofLatter Day Sts., 41 AD3d 796, 798 [2007]).
The appellants' remaining contentions are without merit. Dillon, J.P., Santucci, Hall andLott, JJ., concur.