Gleissner v Brickman Assoc.
Annotate this CaseDecided on March 31, 2005
Supreme Court, Kings County
Arthur Gleissner, Plaintiffs,
against
Brickman Associates, TRAVELERS INSURANCE COMPANY, ANRON HEATING and AIR CONDITIONING, INC. and 3HQ ASSSOCIATES, Defendants
11551/02
Francois A. Rivera, J.
Defendant Travelers Insurance Company (hereinafter Travelers) moves for summary judgment seeking costs, on the grounds that Brickman Associates (hereinafter Brickman) failed to procure insurance covering Travelers. Brickman opposed the motion.
On or about March 22, 2002, plaintiffs filed a summons and complaint with the Kings County Clerk's office. The complaint alleges that on October 8, 2001, the plaintiff was injured while working in an office space undergoing renovations located at 3 Huntington Quadrangle, Melville, New York. Plaintiff alleges that he was injured when a T-bar grill and fire damper fell from the ceiling and cut his right hand and wrist. Plaintiff contends that the fire dampers were improperly secured or installed by defendant Anron Heating and Air Conditioning, Inc. (hereinafter Anron). 3HQ Associates (hereinafter 3HQ) was the owner and Brickman was the manager of the premises where the renovation was being conducted. Travelers was the lessee of the subject premise.
Plaintiff alleged causes of action grounded on common law negligence and violations of Labor Law §§§ 200, 240(1), and 241(6). Defendant Brickman Associates moved for summary judgment dismissing plaintiff's complaint and all cross claims by the co-defendants. By order of this court, dated October 15, 2004, the court denied Brickman's motion for summary judgment pertaining to common law negligence, and Labor Law §§ 200 and 240(1) and granted their motion for summary judgment pertaining to the violation of Labor Law §241(6).
Defendant Anron cross moved for summary judgment dismissing plaintiff's complaint. By the aforementioned order of this court, dated October 15, 2004, the court denied Anron's motion for summary judgment pertaining to allegations of common law negligence, and Labor [*2]Law §§200 and 240(1) and granted their motion for summary judgment pertaining to the violation of Labor Law §241(6).
Defendant Travelers moved for summary judgment dismissing plaintiff's complaint and for contractual indemnification from co-defendant Brickman. Travelers also moved for costs incurred by the alleged failure of co-defendant Brickman to procure insurance coverage for Travelers. By order of this court, dated October 15, 2004, the court granted Travelers' motion for summary judgment dismissing plaintiff's allegations of common law negligence and violations of Labor Law §§§ 200, 240(1), and 241(6). As a result of the court's decision, Travelers' motion for contractual indemnification from co-defendant Brickman was rendered moot.
Travelers' motion seeking costs incurred by Brickman's alleged failure to procure insurance for Travelers' benefit is the sole issue remaining and the subject of this decision.
Travelers' motion relies exclusively on the lease agreement between 3HQ, as owner, and Travelers, as tenants. Travelers' motion papers, however, do not allege that Brickman agreed to be bound by any agreements between 3HQ Associates, as owner, and Travelers, as tenants. The lease agreement, dated August 20, 2001, did include a provision for indemnification and the procurance of insurance for the tenant, Travelers. The lease agreement was signed by Bruce S. Brickman on behalf of 3HQ and Andy F. Bessette, as vice president of Travelers. Although Bruce Brickman signed the lease, there was no language in the lease stating that defendant Brickman Associates agreed to be bound by the terms binding 3HQ.
Brickman Associates avers that it is neither a party to the lease agreement in question nor a disclosed agent who signed the agreement on behalf of 3HQ. They further contend that even if they were deemed to be a disclosed agent on behalf of 3HQ, they would not be liable to Travelers since there is no evidence that they agreed to be bound on behalf of the principal 3HQ. Travelers neither disputes nor directly address Brickman's contentions.
General Obligation Law §5-701(a)(2) provides that every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking is a special promise to answer for the debt, default or miscarriage of another person.
It is well settled that a party moving for summary judgment must make out a prima facie showing that it is entitled to judgment as a matter of law (Zarr v. Ricco, 180 AD2d 734 [2nd Dept 1992]). Once a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (Romano v. St. Vincent's Medical Center of Richmond 178 AD2d 467 [2nd Dept 1991]).
The burden is, therefore, upon Travelers to show that as a matter of law, Brickman Associates is responsible for the condition in the lease agreement calling for indemnification and the procurance of insurance for Travelers' benefit as the tenant. Travelers did not meet this burden. Indeed, Brickman Associates has established that it did not sign the lease agreement. The lease was signed by Bruce Brickman for 3HQ and not by Brickman Associates. There is no evidence showing that Bruce Brickman is Brickman Associates. There is also no evidence showing that Brickman Associates is 3HQ. Even if one were to assume, arguendo, that Brickman Associates is the agent for 3HQ, there is no evidence to show that Brickman, as the [*3]agent, agreed explicitly to be bound by the terms of the agreement of its principal. An agent may not be bound in that manner unless the agent explicitly agrees to be so bound in writing (PNC Capital Recovery v. Mechanical Parking Systems, Inc.,283 AD2d 268-270 [1st Dept 2001]; see also Saboy Record Company, Inc. v Cardinal Export Corp., 15 NY2d 1 [1964]; Yellow Book of NY, LP v Dominick DePante, 309 AD2d 859 [2nd Dept., 2003]).
Travelers' motion for summary judgment against Brickman Associates, for costs due to its failure to procure insurance, is denied.
The foregoing constitutes the decision and order of the court.
________________________
J.S.C.
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