| Centennial Contrs. Enters. v East N.Y. Renovation Corp. |
| 2010 NY Slip Op 09098 [79 AD3d 690] |
| December 7, 2010 |
| Appellate Division, Second Department |
| Centennial Contractors Enterprises,Respondent-Appellant, v East New York Renovation Corporation et al.,Appellants-Respondents. |
—[*1] Quirk & Bakalor, P.C., New York, N.Y. (Steven A. Lee of counsel), forrespondent-appellant.
In an action, inter alia, to recover damages for breach of contract and for contractualindemnification, the defendants appeal from a judgment of the Supreme Court, Queens County(McDonald, J.), entered December 12, 2007, which, after a jury trial on the issue of liability, and uponan order of the same court (Blackburne, J.), dated October 29, 2004, granting the plaintiff's motionpursuant to CPLR 4401 for judgment as a matter of law on the cause of action for contractualindemnification, made at the close of the defendants' case, and denying their cross motion pursuant toCPLR 4401 for judgment as a matter of law dismissing the cause of action for contractualindemnification, also made at the close of the defendants' case, and a decision of the same court(McDonald, J.), dated September 4, 2007, on the issue of damages, is in favor of the plaintiff andagainst them in the principal sums of $204,810 for contractual indemnification and $24,888.82 for anattorney's fee, with prejudgment interest, and the plaintiff cross-appeals, as limited by its brief, from somuch of the same judgment as awarded it prejudgment interest only from October 29, 2004.
Ordered that the judgment is affirmed, without costs or disbursements.
On or about February 1, 1995, Centennial Contractors Enterprises (hereinafter the plaintiff), asgeneral contractor, was awarded a contract (hereinafter the Army Contract) by the United States ArmyCorps of Engineers to perform certain construction work at the United States Military Academy inWest Point. By contract dated April 21, 1997, and executed on behalf of the defendant East NewYork Renovation Corporation (hereinafter East New York) by its president (hereinafter together thedefendants), the plaintiff subcontracted the roofing and masonry work at the job site to East New York.This contract, referred to as the "Master Agreement," incorporated certain delivery order authorizations(hereinafter DOAs) including a DOA signed by East New York on June 2, 1998. That DOA includesthe following language relating to the issue of contractual indemnification: "The undersigned [East NewYork] shall indemnify and hold [the plaintiff] harmless from all causes of action, suits, debts, liens,damages, claims, costs, attorney's fees, and demands of any nature whatsoever relating to persons,forms, or corporations who have furnished [*2]labor, materials, and/orequipment to the undersigned, or at the direction of the undersigned, respecting the Project."
During the work on the project, Stefan Sosin, a laborer employed by East New York, fell from aladder and was injured. Sosin then commenced an underlying action against the plaintiff alleging, interalia, a violation of Labor Law § 240 (1). The plaintiff demanded that the defendants indemnify itin the underlying action, but the defendants did not do so. Following a trial in the underlying action,judgment was entered in Sosin's favor and against the plaintiff in the total sum of $204,810. During theunderlying action, the plaintiff's insurer paid attorney's fees that the plaintiff's attorneys had billed to theplaintiff.
The plaintiff then commenced the instant action against the defendants, inter alia, to recoverdamages for breach of contract and for contractual indemnification. In an order dated October 29,2004, the Supreme Court granted the plaintiff's motion pursuant to CPLR 4401 for judgment as amatter of law on the cause of action for contractual indemnification, made at the close of the defendants'case on the issue of liability, and denied the defendants' cross motion pursuant to CPLR 4401 forjudgment as a matter of law dismissing the cause of action for contractual indemnification. Upon adecision dated September 4, 2007, judgment was entered in favor of the plaintiff and against thedefendants in the principal sums of $204,810 for contractual indemnification and $24,888.82 for anattorney's fee, with prejudgment interest from October 29, 2004.
To be awarded judgment as a matter of law pursuant to CPLR 4401, a plaintiff has the burden ofshowing that there is no rational process by which the jury could find in the defendant's favor (see Durkin v Long Is. Power Auth., 37AD3d 400, 401 [2007]). Similarly, a defendant's motion for judgment as a matter of law pursuantto CPLR 4401 should be granted only when, accepting the plaintiff's evidence as true, and accordingthat evidence the benefit of every favorable inference that can reasonably be drawn from it, there is norational process by which the jury could find for the plaintiff against the defendant (see Dockery v Sprecher, 68 AD3d1043, 1045 [2009]; Wehr v Long Is.R.R. Co., 38 AD3d 880, 880-881 [2007]).
A party is entitled to contractual indemnification when the intention to indemnify is "clearly impliedfrom the language and purposes of the entire agreement and the surrounding circumstances" (Torres v LPE Land Dev. & Constr., Inc.,54 AD3d 668, 670 [2008]). The evidence adduced at the jury trial on the issue of liabilitydemonstrated that the plaintiff was entitled to judgment as a matter of law on its cause of action forcontractual indemnification, as there is no rational process by which the jury could find in thedefendants' favor, since the plaintiff was not negligent and did not control or supervise Sosin's work (see Cabrera v Board of Educ. of City ofN.Y., 33 AD3d 641, 643 [2006]). The plaintiff's duty, pursuant to the Army Contract, tosupervise the work and ensure compliance with safety regulations does not amount to supervision andcontrol of the work site such that the plaintiff would be liable for the negligence of the contractor whoperforms the day-to-day operations (see id.). The fact that an employee of the plaintiffinspected the work site each day and was authorized to stop the work in the event that he observed anyunsafe condition was insufficient to establish liability (cf. Capolino v Judlau Contr., Inc., 46 AD3d 733 [2007]). Moreover,the Master Agreement provides that the defendants assumed all of the plaintiff's obligations andresponsibilities to the Army, and that the defendants were solely responsible for supervising anddirecting the work of their employees. Further, contrary to the defendants' contention, theindemnification provisions of the Master Agreement and the subject DOA are enforceable because theplaintiff was free of negligence (see Brown v Two Exch. Plaza Partners, 76 NY2d 172, 179[1990]; Giangarra v Pav-Lak Contr.,Inc., 55 AD3d 869, 871 [2008]).
Thus, the Supreme Court properly granted the plaintiff's motion pursuant to CPLR 4401 forjudgment as a matter of law on the cause of action for contractual indemnification, and properly deniedthe defendants' cross motion pursuant to CPLR 4401 for judgment as a matter of law dismissing thatcause of action.
The defendants further contend that the Supreme Court erred in awarding the plaintiff attorney'sfees that the plaintiff incurred in the defense of the underlying action. Generally, [*3]attorney's fees and other expenses incurred during an action areconsidered an incident of litigation and, unless authorized by statute, court rule, or written agreement ofthe parties, are not recoverable (see TAG380, LLC v ComMet 380, Inc., 10 NY3d 507, 515-516 [2008]; Hooper Assoc. v AGSComputers, 74 NY2d 487, 491 [1989]; RAD Ventures Corp. v Artukmac, 31 AD3d412, 414 [2006]). Here, the subject DOA obligated the defendants to "indemnify and hold [theplaintiff] harmless from all causes of action . . . costs, attorney's fees . . .relating to persons . . . who have furnished labor . . . to [East New York] orat the direction of [East New York] . . . respecting the project." Moreover, section 30 ofthe Master Agreement, "Interpretation of Contract Documents," provides that the terms of theagreement were to be "considered as complementary," and that if "such an interpretation is notpossible," the DOA would be first in precedence in interpreting the contract documents. Read together,the indemnification provisions in the DOA and the Master Agreement clearly required the defendants toindemnify the plaintiff for the attorney's fees incurred in the defense of the underlying action (seeTAG 380, LLC v ComMet 380, Inc., 10 NY3d at 515-516).
Contrary to the defendants' contention, the Supreme Court did not err in awarding the plaintiffprejudgment interest on the $204,810 contractual indemnification award and on the $24,888.82attorney's fee award (see CPLR 5001 [a]). Under the circumstances, the Supreme Court didnot improvidently exercise its discretion in awarding the plaintiff prejudgment interest only from October29, 2004 (see CPLR 5001 [b]).
The defendants' remaining contentions are without merit.
Accordingly, the judgment is affirmed. Mastro, J.P., Florio, Leventhal and Sgroi, JJ., concur.