| Baillargeon v Kings County Waterproofing Corp. |
| 2012 NY Slip Op 00315 [91 AD3d 686] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Roger Baillargeon et al., Respondents, v Kings CountyWaterproofing Corp., Respondent-Appellant, and Gordon H. Smith Corporation,Appellant-Respondent, et al., Defendants. |
—[*1] James J. Toomey, New York, N.Y. (Eric P. Tosca of counsel), for respondent-appellant. Ira M. Thomas, Cedarhurst, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendant Gordon H. SmithCorporation appeals, as limited by its brief, from so much of an order of the Supreme Court,Kings County (Schmidt, J.), dated April 16, 2010, as denied its motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it and on its second crossclaim against the defendant Kings County Waterproofing Corp. for contractual indemnificationand to recover damages for breach of contract for failure to procure insurance, and the defendantKings County Waterproofing Corp. cross-appeals, as limited by its brief, from so much of thesame order as denied its cross motion for summary judgment dismissing the complaint and allcross claims insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the motion of the defendant Gordon H. Smith Corporation which was for summaryjudgment on so much of its second cross claim against the defendant Kings CountyWaterproofing Corp. as sought to recover damages for breach of contract for failure to procureinsurance, and substituting therefor a provision granting that branch of the motion; as somodified, the order is affirmed insofar as appealed and cross-appealed from, with one bill ofcosts to the plaintiffs, payable by the defendant Kings County Waterproofing Corp.
The injured plaintiff allegedly slipped and fell on a wet floor while installing a carpet at theJacob Javits Convention Center (hereinafter the Javits Center). The injured plaintiff and his wife,suing derivatively, commenced this action to recover damages for personal injuries, alleging that,prior to the accident, the defendants had been hired by the Javits Center to repair a recurrentleaking condition of the glass roof, and that the accident occurred as a result of their negligencein repairing the roof in the area where the injured plaintiff fell.[*2]
The defendant Gordon H. Smith Corporation (hereinafterGHSC) was an engineering consultant hired by the New York Convention Center OperatingCorporation (hereinafter the CCOC) to investigate the leakage problem at the Javits Center andto formulate a plan to remedy it. CCOC separately hired the defendant Kings CountyWaterproofing Corp. (hereinafter Kings County Waterproofing) to perform the remedial workproposed by GHSC in two specific areas of the roof. After joinder of issue and the completion ofdiscovery, GHSC moved for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against it and on its second cross claim against Kings County Waterproofingfor contractual indemnification and to recover damages for breach of contract for failure toprocure insurance naming GHSC as an additional insured. Kings County Waterproofingcross-moved for summary judgment dismissing the complaint and all cross claims insofar asasserted against it. The Supreme Court denied the motion and the cross motion.
GHSC and Kings County Waterproofing (hereinafter together the defendants) failed toestablish their prima facie entitlement to judgment as a matter of law dismissing the complaintand all cross claims insofar as asserted against each of them, as triable issues of fact exist as towhether a dangerous condition existed on the floor which caused the injured plaintiff to slip andfall and, if so, whether the dangerous condition was created or exacerbated by their allegedlynegligent repair of the leaking roof (seeHaracz v Cee Jay, Inc., 74 AD3d 1145 [2010]; Doize v Holiday Inn Ronkonkoma, 6 AD3d 573 [2004]). Thedefendants' failure to make a prima facie showing of entitlement to judgment as a matter of lawrequired denial of Kings County Waterproofing's cross motion and those branches of GHSC'smotion which were for summary judgment dismissing the complaint and all cross claims insofaras asserted against each of them, regardless of the sufficiency of the opposition papers (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
GHSC also failed to establish its prima facie entitlement to judgment as a matter of law on somuch of its second cross claim against Kings County Waterproofing as sought contractualindemnification. "[A] party is entitled to full contractual indemnification provided that the'intention to indemnify can be clearly implied from the language and purposes of the entireagreement and the surrounding facts and circumstances' " (Drzewinski v Atlantic Scaffold &Ladder Co., 70 NY2d 774, 777 [1987], quoting Margolin v New York Life Ins. Co.,32 NY2d 149, 153 [1973]). "[A] party seeking contractual indemnification must prove itself freefrom negligence, because to the extent its negligence contributed to the accident, it cannot beindemnified therefor" (Cava Constr.Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2009]; see Bellefleur v Newark Beth Israel Med.Ctr., 66 AD3d 807, 808 [2009]). Where a triable issue of fact exists regarding theindemnitee's negligence, summary judgment on a claim for contractual indemnification must bedenied as premature (see Bellefleur v Newark Beth Israel Med. Ctr., 66 AD3d at 808;State of New York v Travelers Prop. Cas. Ins. Co., 280 AD2d 756, 757-758 [2001]).
Here, the Request for Proposals (hereinafter the RFP) upon which GHSC relied provided thatKings County Waterproofing "shall indemnify and save harmless [the CCOC] and [GHSC] fromthe claims, suits, actions, damages and costs of every name and description resulting from thenegligent performance of the services of the Contractor under the contract." However, KingsCounty Waterproofing's contract with the CCOC did not name GHSC as an indemnitee in theindemnification clause contained therein and did not expressly incorporate the terms of the RFP.Thus, GHSC failed to meet its prima facie burden of establishing that Kings CountyWaterproofing had any contractual obligation to indemnify it. Moreover, since there are triableissues of fact as to whose negligence, if any, caused the injured plaintiff's accident, summaryjudgment on so much of GHSC's second cross claim against Kings County Waterproofing assought contractual indemnification was not warranted (see Bellefleur v Newark Beth IsraelMed. Ctr., 66 AD3d at 808; Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58AD3d at 662).
However, that branch of GHSC's motion which was for summary judgment on so much of itssecond cross claim against Kings County Waterproofing as sought to recover damages for breachof contract for failure to procure insurance naming it as an additional insured should have beengranted. The contract between Kings County Waterproofing and the CCOC clearly requiredKings County Waterproofing to name GHSC as an additional insured on its liability policy. Inopposition to GHSC's prima facie showing of entitlement to judgment as a matter of law, Kings[*3]County Waterproofing failed to present any evidence toestablish its compliance with that obligation. Accordingly, GHSC was entitled to summaryjudgment on so much of its second cross claim against Kings County Waterproofing as sought torecover damages for breach of contract for failure to procure insurance naming it as an additionalinsured (see Inchaustegui v 666 5th Ave. Ltd. Partnership, 96 NY2d 111, 114 [2001]; Boxer v Metropolitan Transp. Auth.,52 AD3d 447 [2008]; Taylor v Doral Inn, 293 AD2d 524 [2002]). Eng, J.P., Belen,Hall and Lott, JJ., concur.