Fraioli v St. Joseph's Seminary of City of N.Y.
Annotate this CaseDecided on July 14, 2005
Supreme Court, Bronx County
Benny Fraioli, Plaintiff,
against
St. Joseph's Seminary of the City of New York a/k/a ST. JOSEPH'S SEMINARY AND COLLEGE, ST. JOSEPH'S SEMINARY, M.J. FITZGERALD CONSTRUCTION CORP. a/k/a MICHAEL J. FITZGERALD CONTRACTING COMPANY, INC., BAROCO CONTRACTING CORPORATION, THE ARCHDIOCESE OF NEW YORK and EUROWAY CONTRACTING CORP., Defendants
26904/98
Dianne T. Renwick, J.
Plaintiff Benny Fraioli commenced this action seeking to recover money damages for personal injuries sustained during a construction site accident. Plaintiff discontinued the action against all defendants in exchange for the settlement amount of $900,000. Defendant M.J. Fitzgerald Construction Corp., who agreed to pay $550,000 of the settlement, now seeks to recoup its share of the settlement by procuring a judgment based upon its common law indemnification claim against co-defendant Euroway Contracting.
Factual and Procedural Background
Plaintiff Benny Fraioli's injuries were sustained as a result of a fall from a scaffold. At the time of the accident, plaintiff was employed as a carpenter for Baroco Contracting Corp. Defendant The Archdiocese of New York had hired defendant M.J. Fitzgerald Construction Corp. (hereinafter referred to as "Fitzgerald") as the general contractor to erect a new archive center at the incident site. Fitzgerald hired Euroway Contracting Corp. (hereinafter referred to as [*2]"Euroway") to form, reinforce and cast the concrete foundation and walls at the site. Euroway then retained plaintiff's employer, Baroco Contracting Corp., to assist it with the concrete work. The Archdiocese of New York rented the subject premises to defendant St. Joseph Seminary.
By a decision and order dated July 25, 2002, this Court granted plaintiff's motion for partial summary judgment on liability against defendants owner and general contractor (respectively, The Archdiocese of New York and Fitzgerald,) pursuant to Labor Law §240(1) and predicated upon the fall due to the collapse of the scaffold. By a decision and order dated September 23, 2003, this Court granted, on default, defendant Fitzgerald's motion for summary judgment on its common law indemnification claim against co-defendant Euroway, who failed to answer in the main action and in the third-party claim. By a stipulation dated March 31, 2004, plaintiff discontinued the action against all defendants in exchange for a settlement amount of $900,000. The settlement agreement, executed on March 29, 2004, stipulated that defendant Fitzgerald was to pay $550,000 and co-defendant St. Joseph Seminary was to pay the remaining $350,000. Subsequently, defendant Fitzgerald instituted this motion seeking indemnity from co-defendant based upon the amount of its share of the settlement.
Discussion
As a preliminary matter, this Court finds that General Obligations Law 15-108 does not bar defendant Fitzgerald's claim for common law indemnification against co-defendant Euroway. Such provision, governing the effect of a release or covenant not to sue, applies solely to claims for contribution, not to claims for indemnity. See Westchester County v. Welton Bechet Associates, 66 NY2d 642 (1985); McDermoth v. City of New York, 50 NY2d 211 (1980); Riviello v. Waldron, 47 NY2d 297 (1979). Accordingly, although a tortfeasor who has obtained his or her release from liability cannot seek contribution from a co-tortfeasor, see General Obligations Law §15-108-c, the injured party's settlement with a tortfeasor who is owed indemnity by another tortfeasor does not preclude that tortfeasor from seeking a claim for indemnification against the other tortfeasor. Westchester County v. Welton Bechet Associates, supra; McDermott v. City of New York, supra; Riviello v. Waldron, supra.
Nor does this Court find any merit to defendant Euroway's argument that defendant Fitzgerald cannot get a judgment on the common law indemnification claim asserted in the third-party action because the main action has been settled and the release signed. A release is a species of contract, and therefore its interpretation is governed by general principles of contract law. See Mangini v. McClurg, 24 NY2d 556, 562 (1969); Aetna Cas. & Sur. Co. v. Jackowe, 96 AD2d 37 (2d Dept. 1983). Thus, although the intent of the parties is paramount in deciding the effect of a release, where the terms of a release are unambiguous such intent must be discerned from the four corners of the document rather than from extrinsic evidence. See Wells v. Shearson Lehman/American Express, Inc., 72 NY2d 11, 12 (1988) ("[T]he courts must look to the language of a releasethe words used by the parties to determine their intent, resorting to extrinsic evidence only when the court concludes as a matter of law that the contract is ambiguous."); Oxford Commercial Corp. v. Landau, 12 NY2d 362, 365 (1963) (same).
Here, the plain language of the release makes clear that plaintiff intended to release defendants St. Joseph Seminary and Fitzgerald from liability in consideration of the payment, respectively, of $350,000 and $550,000. In addition, The release makes no mention of defendant Fitzgerald's third-party claim against co-defendant Euroway. Thus, the terms of the release are [*3]unambiguous in expressing the parties intent to settle all claims, by plaintiff only against St. Joseph Seminary and Fitzgerald. Moreover, defendant cannot establish the release of the third-party indemnity claim by plaintiff's discontinuance of his claims against all the settling and non-settling defendants. Accordingly, defendant Fitzgerald's third party claim against co-defendant Euroway for common law indemnification has not been extinguished by either operational of law or any release.
However, where the right to indemnity is based on a third-party plaintiff's settlement of the main action, it must be established not only that the third-party defendant was liable to the third-party plaintiff, but that the amount paid in settlement was, in fact, reasonable. Codling v. Paglia, 38 AD2d 154, aff'd in part and reversed in part, 32 NY2d 330 (1973). See e.g., Mt. Vernon Fire Ins. Co. v Trans World Maintenance Service, Inc., 169 AD2d 519 (1st Dept. 1991); McGurran v. DiCanio Planned Development Corp., 251 AD2d 467 (2nd Dept. 1998). This Court finds that defendant Fitzgerald has met only the first prong of the Coddling two-prong test.
In as much as defendant Fitzgerald had obtained a conditional summary judgment for common law indemnification against co-defendant Euroway, there is no question that defendant Euroway was already obligated to defendant Fitzgerald when the latter reached a settlement with plaintiff before trial for the sum of $550,000. As this Court previously held, defendant Fitzgerald was entitled to indemnification from Euroway as a matter of law because Fitzgerald's liability for plaintiff's damages was solely statutory pursuant to Labor Law 240(1). See Santos v. BRE/Swiss, LLC, 9 AD3d 303 (1st Dept. 2004).
Indeed, there is no suggestion that Fitzgerald had the authority to supervise or control over the placement of the scaffold. Nor is there any evidence that Fitzgerald had any control over the work plaintiff had been performing at the time of his accident. Where there is no evidence that the owner or general contractor directed the work, "the basis of its liability remains vicarious, and it may recover against the wrongdoer under the theory of implied indemnification. Blaskovic v. Penguin House Tenants Corp., 158 AD2d 434, 435 (1st Dept. 1990); see also, Carr v. Jacob Perl Assocs., 201 AD2d 296, 297 (1st Dept. 1994). Rather, based upon this Court's grant of a default judgment to Fitzgerald on its third-party claims for common law indemnification against Euroway, who failed to answer the complaint,[FN1] the evidence submitted established that Euroway was negligent in the erection of the scaffold and in the supervision of the injured plaintiff's work. See Rokina Opt. Co. v. Camera Kina, 63 NY2d 728, 730-731 (1984) (default judgment foreclosed any determination that defendant's equitable share of fault was less than 100 percent).
Defendant Fitzgerald, however, has not met its burden with regard to the second prong of the Coddling test. Specifically, defendant Fitzgerald has failed to make any attempt to demonstrate the reasonableness of the settlement amount of $900,000, of which defendant Fitzgerald agreed to contribute $550,000. For instance, no medical evidence was adduced to [*4]establish the severity of plaintiff's injuries resulting from the fall from the scaffold and their effect on his daily life. While the amount of the settlement cannot be categorized as scant, this Court cannot make a determination of the reasonableness of the settlement based on the amount alone. Cf. Acunto v. Conklin, 285 AD2d 712 (3rd Dept. 2001) (Defendants demonstrated the reasonableness of the settlement, where the medical evidence established that as a result of a 25-foot fall, the injured party sustained a fracture of his lumbar spine and severe fractures to his left wrist, left ankle, and tibia; the wrist and ankle fractures both required surgeries and insertion of multiple screws/pins and the ankle joint was fused, leaving permanent limitations of motion in both).
Conclusion
In sum, this Court finds that General Obligations Law §15-108-c does not preclude defendant Fitzgerald from seeking a judgment on its common law indemnification claim against co-defendant Euroway, despite the settlement of the main action between plaintiff and all defendants. Nevertheless, this Court finds that defendant Fitzgerald cannot be granted a judgment for $550,000, on its common law indemnification claim against co-defendant Euroway, since defendant Fitzgerald has failed to establish the reasonableness of the settlement. Accordingly, this matter is set down for a hearing with respect to the reasonableness of the settlement. Such hearing shall be held in IA Part 1, Room 809, 851 Grand Concourse, at 9:30 A.M. on September 12, 2005.
This constitutes the Decision and Order of this Court.
Dated: July 14, 2005 __________________________
Bronx, New York Hon. Dianne T. Renwick, J.S.C.
Footnotes
Footnote 1: Defendant Euroway moved for an order vacating its default in failing to appear or answer the complaint. By a decision and order dated November 22, 2002, this Court denied the motion because defendant Euroway failed to establish an excuse for the default and a meritorious defense.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
