| Alfaro v 65 W. 13th Acquisition, LLC |
| 2010 NY Slip Op 05711 [74 AD3d 1255] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Thomas Alfaro, Plaintiff v 65 West 13th Acquisition,LLC, et al., Defendants/Third-Party Plaintiffs, and Masterbuilders, Inc., Defendant/SecondThird-Party Plaintiff-Respondent, et al., Defendants. Urban Outfitters, Inc., Third-PartyDefendant-Appellant, et al., Third-Party Defendant/Second Third-Party Defendant. (And a ThirdThird-Party Action.) |
—[*1] Paganini, Gambeski, Cioci, Cusumano & Farole, Lake Success, N.Y. (Peter A. Cusumano ofcounsel), for defendant/second third-party plaintiff-respondent.
In an action to recover damages for personal injuries, the third-party defendant UrbanOutfitters, Inc., appeals, as limited by its brief and by letter dated February 8, 2010, from somuch of an order of the Supreme Court, Kings County (Lewis, J.), dated February 20, 2009, asdenied that branch of its cross motion which was for summary judgment on its cross claim forcontractual indemnification against the defendant and third-party plaintiff Masterbuilders, Inc.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against, among others, the defendant 65 West 13thAcquisition, LLC (hereinafter 65 West), and Masterbuilders Contracting Corp., sued herein asMasterbuilders, Inc. (hereinafter Masterbuilders), to recover damages for injuries he allegedlysustained when, while working as an employee of Masterbuilders' subcontractor, defendantthird-party second third-party Everett Construction Corp. (hereinafter Everett), on premisesowned by 65 West, he tripped on the metal "lip" of one of the steps of an unfinished staircase.Subsequently, 65 West commenced a third-party action for common-law and contractualindemnification against, among others, the third-party defendant Urban Outfitters, Inc.(hereinafter Urban Outfitters), which leased retail space at the premises. Urban Outfittersasserted cross claims for contribution and contractual indemnification against, among others,Masterbuilders, the general contractor for construction work underway on its leased premises.After 65 West moved for summary judgment against, among others, Urban Outfitters, UrbanOutfitters cross-moved, inter alia, for summary judgment on its cross claim for contractualindemnification against Masterbuilders.
The right to contractual indemnification depends upon the specific language of the contract(see Sherry v Wal-Mart Stores E., L.P., 67 AD3d 992, 994 [2009]; Canela v TLH140 Perry St., [*2]LLC, 47 AD3d 743, 744 [2008]). In theabsence of a legal duty to indemnify, a contractual indemnification provision "must be strictlyconstrued to avoid reading into it a duty which the parties did not intend to be assumed"(Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]; see Baginski v QueenGrand Realty, LLC, 68 AD3d 905, 907 [2009]). "The promise [to indemnify] should not befound unless it can be clearly implied from the language and purpose of the entire agreement andthe surrounding facts and circumstances" (Hooper Assoc. v AGS Computers, 74 NY2dat 491-492; see Eldoh v Astoria Generating Co., LP, 57 AD3d 603, 604 [2008];Canela v TLH 140 Perry St., LLC, 47 AD3d at 744).
Here, contrary to Urban Outfitters' contention, it cannot be clearly implied from the languageof the indemnification provision of the contract between Masterbuilders and Urban Outfittersthat the parties intended for Masterbuilders to indemnify Urban Outfitters based merely on aclaim that Masterbuilders was negligent, without establishing such negligence. Accordingly, theSupreme Court properly denied that branch of Urban Outfitters' cross motion which was forsummary judgment on its cross claim for contractual indemnification against Masterbuilders.Fisher, J.P., Covello, Hall and Sgroi, JJ., concur.