| NYP Holdings, Inc. v McClier Corp. |
| 2011 NY Slip Op 02738 [83 AD3d 426] |
| April 5, 2011 |
| Appellate Division, First Department |
| NYP Holdings, Inc., Plaintiff, v McClier Corporation et al.,Defendants. McClier Corporation, Third-Party Plaintiff-Respondent-Appellant, et al., Third-PartyPlaintiffs, v Ruttura & Sons Construction Company, Inc., Third-PartyDefendant-Appellant-Respondent, et al., Third-Party Defendants. |
—[*1] Zetlin & De Chiara LLP, New York (Raymond T. Mellon of counsel), forrespondent-appellant.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered April 13, 2010,which, insofar as appealed from as limited by the briefs, granted third-party defendant Ruttura &Sons Construction Company, Inc.'s motion pursuant to CPLR 3211 (a) (7) and 3212 to dismissthe second and fourth causes of action of the third-party complaint (for contractualindemnification and contribution, respectively) but denied the motion as to the first and thirdcauses of action (for breach of contract and common-law indemnification, respectively),unanimously affirmed, without costs.
The motion that resulted in the order appealed from was Ruttura's second motion; it hadpreviously made a motion for summary judgment dismissing the third-party complaint based onthe volunteer doctrine (see 65 AD3d 186 [2009]).
As a general rule, "[p]arties will not be permitted to make successive fragmentary attacksupon a cause of action but must assert all available grounds when moving for summaryjudgment" (Phoenix Four v Albertini, 245 AD2d 166, 167 [1997] [internal quotationmarks and [*2]citation omitted]). However, there are exceptionsto this rule (see e.g. Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39[2002]).
Ruttura made its previous motion on behalf of all third-party defendants, and not everythird-party defendant had the same subcontract with third-party plaintiff McClier Corporationthat Ruttura did; for example, third-party defendant Stallone Testing Laboratories, Inc.'ssubcontract was oral. Therefore, Ruttura was not barred from making the instant motion withrespect to the cause of action for contractual indemnification. However, the arguments thatRuttura now raises with respect to common-law or implied indemnification (McClier'sparticipation in the wrongdoing alleged by plaintiff), contribution (the lack of tort damages), andbreach of contract (McClier's failure to allege damages other than indemnification damages)could have been made on behalf of all the third-party defendants; hence, they should have beenraised on the prior motion (see Phoenix, 245 AD2d at 167).
In addition, third-party defendants Stallone, Fred Geller Electrical, Inc., and First Women'sFire Systems Corp. had previously moved to dismiss the third-party complaint; the court(Herman Cahn, J.) granted the motion in part and denied it in part (see 2007 NY Slip Op34111[U] [2007]). To the extent these third-party defendants' interests were identical toRuttura's, they were in privity (seeMatter of Midland Ins. Co., 71 AD3d 221, 226 [2010]), and to the extent an issue wasactually decided on the Stallone motion, law of the case applies (see id. at 225-226).Thus, law of the case bars McClier's contribution claim against Ruttura and permits thecommon-law indemnification and breach of contract claims to survive. However, it does notprevent Ruttura from moving against the contractual indemnification claim, as Justice Cahn didnot decide this issue.
Because neither the rule against successive summary judgment motions nor law of the casebarred Ruttura from moving against the contractual indemnification claim, we consider it on themerits. The indemnification provision in the McClier-Ruttura subcontract states, in pertinentpart, "[T]he Subcontractor shall indemnify . . . the . . . Contractor. . . from and against all claims . . . arising out of or resulting fromperformance of the Subcontractor's Work . . . , provided that any such claim. . . is attributable to bodily injury, sickness, disease or death, or to injury to ordestruction of tangible property (other than the Work itself)" (emphasis added).
One paragraph of the complaint alleges, in conclusory fashion, that "the Post has beendamaged and continues to suffer damages to itself and to other property" (emphasisadded). However, conclusory allegations are insufficient (see Celnick v Freitag, 242AD2d 436, 437 [1997]; Pitcock vKasowitz, Benson, Torres & Friedman LLP, 74 AD3d 613, 615 [2010]). Read as awhole, the complaint's factual allegations show that the only property damage suffered byplaintiff was damage to its printing plant—for example, cracked concrete slabs and the factthat repair work will result in physical damage to the plant. Therefore, by submitting thecomplaint with its moving papers, Ruttura made a prima facie showing of entitlement tojudgment as a matter of law on the contractual indemnification claim.
In opposition to this part of Ruttura's motion, McClier merely relied on the complaint.However, "[t]he burden upon a party opposing a motion for summary judgment is not met merelyby a repetition or incorporation by reference of the allegations contained in pleadings or bills ofparticulars, verified or unverified" (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d338, 343 [1974] [internal quotation marks and citation omitted]). "Bald conclusory assertions areinsufficient to defeat summary judgment" (Spaulding v Benenati, 57 NY2d 418, 425[1982]).
Because the economic losses claimed by plaintiff do not fall within the scope of the [*3]contractual indemnification clause, the motion court properlydismissed the second cause of action (see e.g. Dormitory Auth. of State of N.Y. v CaudillRowlett Scott, 160 AD2d 179, 180-181 [1990], lv denied 76 NY2d 706 [1990]).Concur—Mazzarelli, J.P., Sweeny, Renwick, Richter and Manzanet-Daniels, JJ.[Prior Case History: 2010 NY Slip Op 30905(U).]