| Meabon v Town of Poland |
| 2013 NY Slip Op 05385 [108 AD3d 1183] |
| July 19, 2013 |
| Appellate Division, Fourth Department |
| Grant Meabon, Plaintiff, v Town of Poland, Defendant andThird-Party Plaintiff-Respondent. Sherwood A. Chapman, Doing Business as CadillacCarpentry, Third-Party Defendant-Appellant. (Appeal No. 1.) |
—[*1] Bender & Bender, LLP, Buffalo (Thomas W. Bender of counsel), for third-partyplaintiff-respondent.
Appeal from an order of the Supreme Court, Chautauqua County (James H. Dillon,J.), entered May 14, 2012. The order, insofar as appealed from, granted that part of themotion of third-party plaintiff for partial summary judgment on the first cause of actionin the third-party complaint and denied the cross motion of third-party defendant forsummary judgment.
It is hereby ordered that the order insofar as appealed from is unanimously reversedon the law without costs, the motion of defendant and third-party plaintiff insofar as itsought partial summary judgment on the first cause of action in the third-party complaintis denied and the cross motion of third-party defendant for summary judgment dismissingthe third-party complaint is granted.
Memorandum: Plaintiff commenced this Labor Law and common-law negligenceaction seeking damages for injuries that he allegedly sustained while constructing a polebarn for defendant and third-party plaintiff, Town of Poland (Town). Plaintiff, anemployee of third-party defendant, Sherwood A. Chapman, doing business as CadillacCarpentry (Cadillac), was injured when he slipped and fell from the roof of the structure.In appeal No. 1, Cadillac, as limited by its brief, appeals from an order granting that partof the Town's motion for partial summary judgment on the first cause of action in thethird-party complaint, for contractual indemnification from Cadillac, and denying itscross motion for summary judgment dismissing the third-party complaint. In appeal No.2, Cadillac appeals from an order denying its motion for leave to renew its cross motionpursuant to CPLR 2221.[*2]
We agree with Cadillac that Supreme Court erredin granting that part of the Town's motion with respect to contractual indemnificationfrom Cadillac, and in denying its cross motion for summary judgment dismissing thethird-party complaint. "Workers' Compensation Law § 11 prohibits a third-partyaction against an employer unless the plaintiff sustained a grave injury or there is 'awritten contract entered into prior to the accident or occurrence by which the employerhad expressly agreed to contribution or indemnification of the [third-party plaintiff]' " (Rodriguez v Seven Seventeen HBBuffalo Corp., 56 AD3d 1280, 1281 [2008], quoting Flores v Lower E. Side Serv. Ctr.,Inc., 4 NY3d 363, 367 [2005], rearg denied 5 NY3d 746 [2005]; see also Johnson v UniFirstCorp., 67 AD3d 1442, 1443 [2009]). The Town concedes that plaintiff did notsuffer a "grave injury," and that it is entitled to indemnification only if it can demonstratethe existence of a written contract.
"When a party is under no legal duty to indemnify, a contract assuming thatobligation must be strictly construed to avoid reading into it a duty which the parties didnot intend to be assumed" (Hooper Assoc. v AGS Computers, 74 NY2d 487, 491[1989]). We note, however, that "a clause in a [contract] executed after aplaintiff's accident may nevertheless be applied retroactively where evidence establishesas a matter of law that the agreement pertaining to the contractor's work was made as of[a pre-accident date], and that the parties intended that it apply as of that date" (Nephew v Klewin Bldg. Co.,Inc., 21 AD3d 1419, 1421-1422 [2005]). Here, Cadillac met its initial burden onits cross motion by establishing as a matter of law that, although there was a contractbetween the parties, it was executed nearly a week after plaintiff's accident. Although thecontract is not dated, i.e., the parties left blank a space to be filled in with the date onwhich the contract was "made," we conclude that other language in the contract makesclear that it became effective on the date on which the parties entered into the contract.Thus, Cadillac established that the parties did not intend that the contract be appliedretroactively (cf. Pena v Chateau Woodmere Corp., 304 AD2d 442, 444 [2003],appeal dismissed 2 AD3d 1488 [2003]), and the Town failed to raise a triableissue of fact whether the contract should be applied retroactively to the time of plaintiff'saccident (see generally Zuckerman v City of New York, 49 NY2d 557, 562[1980]).
We also agree with Cadillac that the Town failed to meet its initial burden on itsmotion, or to raise a triable issue of fact in response to Cadillac's cross motion, whether a"course of conduct" between the parties gave rise to a contract for indemnification.Although the Town initially argued such "course of conduct" based on the fact thatCadillac was to provide it with a certificate of insurance or to name it as an insured on aninsurance policy (cf. Kinney v Lisk Co., 76 NY2d 215, 218 [1990];Rodriguez, 56 AD3d at 1281), the Town has conceded on appeal that Cadillacwas not required to provide it with insurance coverage.
Furthermore, inasmuch as the Town's concession constitutes an abandonment of itsremaining cause of action in the third-party complaint, we conclude that the court erredin denying Cadillac's cross motion for summary judgment dismissing the third-partycomplaint. In light of our determination, we dismiss as moot the appeal from the order inappeal No. 2 concerning Cadillac's motion for leave to renew its cross motion (see generally Matter of Elniski vNiagara Falls Coach Lines, Inc., 101 AD3d 1722, 1723 [2012]).Present—Scudder, P.J., Peradotto, Lindley, Sconiers and Whalen, JJ.