Warfel v Edgewater Park Owners Coop., Inc.

[*1] Warfel v Edgewater Park Owners Coop., Inc. 2006 NY Slip Op 51911(U) [13 Misc 3d 1219(A)] Decided on August 8, 2006 Supreme Court, Bronx County Guzman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 8, 2006
Supreme Court, Bronx County

Alwin H. Warfel, Administrator of the Estate of Alwin J. Warfel a/k/a Jamie Warfel, Deceased, Plaintiffs,

against

Edgewater Park Owners Cooperative, Inc., Louis Marino, III, Louis Marino, Jr., Marie Marino, and S.W.A.T. Investigations and Security, Inc., Defendants,



22246/00

Wilma Guzman, J.

After due deliberation upon the foregoing papers, the Decision/Order on these motions is as follows:

The defendants, Edgewater Park Owners Cooperative, Inc., (hereinafter referred to as defendant "Edgewater"), and S.W.A.T. Investigations and Security, Inc., (hereinafter referred to as defendant "S.W.A.T."), move separately pursuant to CPLR § 3212, for summary judgment dismissing the plaintiff's complaint and all cross claims on the grounds that the plaintiff cannot establish a prima facie case of negligence against the defendants.

This is a negligence/wrongful death action brought on behalf of decedent Alwin J. Warfel (a.k.a Jamie Warfel) by Alwin H. Warfel, decedent's father and the administrator of his estate. Decedent, a college student, died at the age of 22 from injuries he received after he was stabbed in the chest with a knife by the defendant, Louis Marino, III (hereinafter referred to as defendant "Marino") following an argument on September 6, 1998, Labor Day weekend, at approximately 5:00a.m. on property owned by the defendant Edgewater at 1 Centre Edgewater Park in Bronx County.[FN1] Plaintiff Alwin H. Warfel and his family, including the decedent, resided in Edgewater Park, a cooperatively owned community, comprising approximately fifty (50) acres. Earlier that night at about 10:00 p.m., a group which included the defendant Marino, had gathered in a common area known as the E Ballfield and appeared to be drinking and having a party. The [*2]defendant S.W.A.T., while patrolling the premises had telephoned the 45th Police Precinct for assistance in disbursing the group. The police arrived and ordered the group to leave the premises. The group moved but did not leave the premises. At the time of the incident, security services at Edgewater Park were provided by defendant S.W.A.T., pursuant to a written agreement between the parties dated July 13, 1998. The agreement between Edgewater and S.W.A.T. contained a Liability Limitation and Indemnities clause as follows:

"a)Client agrees that SWAT is not an insurer and in no event shall

SWAT be liable to Client for any claim other than one which arises during the performance of services under this Agreement and is caused by the performance of SWAT, its employees or agents while acting within the scope of their duties and authority. In no event shall SWAT be liable for any claim caused in whole or in part by acts or omissions of Client or third parties or their respective employees or agents, or for consequential or incidental damages or loss of profits. SWAT undertakes no liability to Client and makes no representation, express or implied, that its services will prevent occurrences or consequences, that result in loss or damage.

b)The services provided under this agreement are solely for the benefit of Client and neither this Agreement nor any services rendered hereunder confer any rights on any other party as a third-party beneficiary, or otherwise. Client agrees to indemnify and hold SWAT harmless from and against any Claims made by a third party(s)."

The defendant Edgewater had retained security services at Edgewater Park because of problems it was encountering on the premises, particularly during the summer months, with youths congregating, vandalism, graffiti on buildings and illegal parking. Defendant S.W.A.T. was required to provide two (2) security guards to patrol the common areas and disburse the kids.

In the verified Bill of Particulars, plaintiff alleges, inter alia, that the defendant Edgewater was negligent in its ownership, maintenance and control of its premises in failing to provide adequate security and in preventing the assault on decedent which took place in a common area at or near the "E Ballfield" on the subject premises. As to the defendant S.W.A.T, the plaintiff alleges in its verified Bill of Particulars, that the defendant was negligent in its provision of security services in failing to take all proper and reasonable steps to avoid and or prevent the attack and killing of the decedent.

The defendant Edgewater now moves for summary judgment dismissing the plaintiff's complaint and all cross claims against it on the ground that it had no duty to protect the public against the criminal acts of unknown third persons occurring in outdoor public areas. Its duty, if any, was limited to undertaking minimal precautions to protect the decedent from foreseeable harm and that any alleged negligence on its part was not a proximate cause of the plaintiff's alleged injuries. The defendant S.W.A.T. also seeks summary judgment dismissing the plaintiff's complaint and all cross claims against it on the grounds that it did not owe any duty of care to the plaintiff. In the alternative, the defendant S.W.A.T. seeks summary judgment on its cross claim for indemnification against the defendant Edgewater.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of any material issue of fact and the right to judgment as a matter of law. See, Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (NY 1986). Once the movant meets his initial burden, the burden shifts to the [*3]opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980).

A party moving for summary judgment is required to establish a prima facie entitlement to that relief regardless of the merits of the opposing papers. See, Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316, 476 NE2d 642 (NY 1985). There is no requirement that evidence be submitted by affidavit. However, the evidence must be in admissible form. See, Muniz v. Bacchus, 282 AD2d 387, 724 NYS2d 46 (1st Dept. 2001)

Summary judgment is a drastic remedy that deprives a litigant of his or her day in Court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to non- moving party. see, Assaf v. Ropog Cab Corp., 153 AD2d 520, 544 NYS2d 834 (1st Dept. 1989). It is well settled that issue finding, not issue determination, is the key to summary judgment. see, Rose v. Da Ecib USA, 259 AD2d 258, 686 NYS2d 19 (1st Dept. 1999). Summary judgment will only be granted if there are no material, triable issues of fact. see, Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 144 NE2d 387, 165 NYS2d 498 (1957).

A.Edgewater's Motion for Summary Judgement

In support of its motion, defendant Edgewater submits, inter alia, the pleadings, the security services agreement with Edgewater, portions of the deposition transcript of the plaintiff Alwin H. Warfel taken on October 28, 2002, the defendant Edgewater through its manager, John Walker taken on June 9, 2004 and that of S.W.A.T. through its President, Theodore W.Banker taken on August 19, 2004. In addition, the defendant relies on portions of the trial transcript of the testimony of eye witnesses, Thomas Gerhard and Michele Patriarca, who testified at the criminal trial of the defendant Moreno on January 16, 2002 and January 23, 2002, respectively.[FN2] The defendant Edgewater contends that it did not have a duty to protect the plaintiff against an assault by a third party in an outdoor area . It claims that its only duty was limited to undertaking minimal precautions to protect the plaintiff from foreseeable harm which duty it met by retaining the defendant S.W.A.T. in the summer of 1998 on and before the date of the incident. Moreover, it argues that the subject incident was not proximately caused by any failure on its part to provide adequate security but rather, by the unforeseeable criminal act of defendant Marino.

The plaintiff, in opposing the motion, maintains that the defendant Edgewater had a duty to protect the plaintiff from an assault by a third party on the private property of Edgewater; that as owners of Edgewater Park Owners Cooperative, Inc., the Coop had a duty to keep its premises free of known dangerous conditions, including, but not limited to, the use of alcohol and drugs; to take reasonable care to prevent harm, and a duty to control the conduct of third parties if they have the opportunity and perceived the need. Plaintiff claims that the Coop was aware of such conditions and points to the deposition transcript of Alwin H. Warfel at pp. 65-6, 78-9; John Walker for defendant Edgewater at pp. 14, 20, 28, 32 and Ted Banker for defendant S.W.A.T. at [*4]p. 98 which indicate that there were allegations of teenage drinking and drugs being sold on the subject premises. In further support, the plaintiff relies on copies of Edgewater's monthly news bulletin, particularly, Vol. Two No. Eleven dated June, 1997 (Exhibit E of plaintiff's opposition papers) in which it states in the paragraph Police Reports all Quiet in Edgewater

"In the past several months graffiti and vandalism have plagued the park,

near riots, broken car windows, fights, most of this by our own youth. The

situations are most prevalent to those residents who live around the main

parking lot."

According to plaintiff, by hiring the defendant S.W.A.T., it could be argued that the defendant Edgewater undertook to provide some protective services to Edgewater's tenants and guests and that the absence of defendant S.W.A.T. from the E Ballfield at the time of the incident, could be construed by a jury as a legal proximate cause of the plaintiff's injuries. Plaintiff contends that questions of fact exist for a jury as to whether the measures undertaken by the defendant Edgewater were sufficient and whether defendant S.W.A.T. properly exercised its duties and had enough personnel to accomplish its contractual obligations. According to plaintiff, the types of safety precautions that may reasonably be required of a landowner is almost always a question of fact for a jury. See Nallan v. Helmsley-Spear, Inc., 50 NY2d 507 (1980)."Negligence consists of a breach of a duty of care owed to another." Di Cerbo by Di Cerbo v. Raab, 132 AD2d 763, 764, 516 NYS2d 995 (3d Dept. 1987). It is axiomatic that, to establish a case of negligence, plaintiffs must prove that the defendant owed them a duty of care, and breached that duty, and that the breach proximately caused the plaintiffs' injury. See Solomon by Solomon v. City of New York, 66 NY2d 1026, 1027, 499 NYS2d 392, 489 NE2d 1294 (1985); Wayburn v. Madison Land Ltd. Partnership, 282 AD2d 301, 302, 724 NYS2d 34 (1st Dept. 2001). Absent a duty of care to the injured party, a defendant cannot be held liable in negligence. Palsgraf v. Long Island R.R. Co., 248 NY 339, 162 N.E. 99 (1928). The question of whether a duty of care exists is one for the court to decide. De Angelis v. Lutheran Med. Ctr., 58 NY2d 1053, 462 NYS2d 626, 449 NE2d 406 (1983); Stankowski v. Kim, 286 AD2d 282, 730 NYS2d 288 (1st Dept.), lv. dismissed 97 NY2d 677, 738 NYS2d 292, 764 NE2d 396 (2001). Courts have consistently held that negligence claims should not be resolved at the summary judgment stage. See e.g. Gilmartin v. Helmsley-Spear, Inc., 162 AD2d 275, 276, 556 NYS2d 632 (1st Dept. 1990); Kahane v. Marriott Hotel Corp., 249 AD2d 164, 165, 672 NYS2d 55 (1st Dept. 1998); Forrester v. Port Auth. of New York. and New Jersey, 139 AD2d 449, 527 NYS2d 224 (1st Dept. 1988) (resolution of question of foreseeability is for trier of fact); Rotz v. City of New York, 143 AD2d 301, 304, 532 NYS2d 245 (1st Dept. 1988) (issues of foreseeability are left to finders of fact, even where facts are essentially undisputed). Nevertheless, landlords have a firmly established common-law duty to take only "minimal precautions" to protect tenants and visitors from foreseeable harm, including foreseeable criminal acts (Mason v. U.E.S.S. Leasing Corp., 96 NY2d 875, 730 NYS2d 770, 756 NE2d 58). Landlords are not insurers of the safety of those who use their premises and, even with a history of crime committed on the premises, cannot be held to a duty to take protective measures unless it is shown that they know or, from past experience, have reason to know that there is a likelihood of conduct, criminal or otherwise, likely to endanger the safety of those using their premises. "The question of the scope of an alleged tort-feasor's duty is, in the first [*5]instance, a legal issue for the court to resolve" (Williams v. Citibank, 247 AD2d 49, 51-52, 677 NYS2d 318, lv. denied 92 NY2d 815, 683 NYS2d 174, 705 NE2d 1215). See, Gross v. Empire State Building, 4AD3d 45, 773 NYS2d 354 (1st Dept. 2004) To establish a prima facie case of proximate cause, a plaintiff must show "that the defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315[1980]). "Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" (id.) An intervening act may break the causal nexus when it is "extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct" (id.).`

In the instant case, this court finds that the defendant Edgewater has failed to establish its entitlement to summary judgement as a matter of law. Plaintiff has established that prior to the incident involving plaintiff decedent, the defendant Edgewater was aware of incidents on its premises involving violence and the use of drugs and alcohol by the youth. Therefore, at the time of the subject incident, by employing the security services of the defendant S.WA.T., defendant Edgewater undertook a duty of protection to its tenants and residents. Based on the deposition testimony relied on by both the moving defendant and the plaintiff, that earlier that night the defendant S.W.A.T. was aware of the presence of a group of youth congregating in the E Ballfield, where the stabbing of the plaintiff decedent took place only hours later, but had failed in its efforts to disburse the group, a question of fact exists for a jury at trial as to whether the defendant Edgewater had failed to take reasonable security measures, and if so, whether such failure was the proximate cause of the assault. See, King v. Resource Property Management Corp., 245 AD2d 10 (1st Dept. 1997). Also, the court in Anokye v. 240 East 175th Street Housing Dev. Fund Corp., 16 AD3d 287 (1st Dept. 2005) found that evidence indicating that locks to the lobby doors were not working, that the contracted-for security guard was not present at his lobby post at the time of the incident, and that the building had been the scene of drug and other criminal activities including burglaries, sufficed to raise triable issues as to whether the defendant building owners breached their duty to take minimal security precautions to protect plaintiff's decedent, their tenant, from the criminal acts of third-party intruders, and as to whether any such failure was the proximate cause of the decedent's harm.

The situation is clearly distinguishable from the facts in Leyva v. Riverbay Corp., 206 AD2d 150 (1st Dept. 1994), upon which the defendant Edgewater strongly relies. In that case plaintiff was assaulted on an obscure secondary outdoor walkway of a sprawling residential complex of over two square miles' known as Co-op City. The issue on appeal was whether a private owner of a large housing complex may, without any showing that one of its many outdoor public walkways presents a danger to pedestrians, be held liable to a person criminally assaulted on that walkway on the ground that, had the owner exercised reasonable control over its premises, it would have observed the perpetrators before they assaulted their victim and thereby prevented the crime. The court reasoned that the plaintiff's assailants, both armed, picked on a lone pedestrian on a desolate pathway, the entire incident lasted a matter of minutes; that it would be an unreasonable burden to impose upon Co-op City the duty of preventing such a random act [*6]of violence, which could have occurred anywhere over its 32 miles of sidewalks and pathways. The court therefore found "on this record, Co-op City has met its obligation to maintain minimal security measures' of its public ways in the face of foreseeable criminal threat to its users.(citation omitted). It maintains a security staff of over 100 persons, which provides 24-hour surveillance seven days a week for both the interior and exterior of its buildings, as well as its sidewalks, walkways and pathways, augmented by the New York City Police Department, which does some patrolling of Co-op City's public street. At the time plaintiff was shot, 20 to 30 security officers were on patrol. Co-op City is obliged to provide reasonable security measures not optimal nor the most advanced security system available (citation omitted)"

In the instant case, although the incident happened in an outdoor area on defendant's premises, it was far from being an obscure area, but was in fact an area where a group of persons had assembled and was part of the very area of security concern agreed on by the defendants. In addition, the evidence demonstrates that although Edgewater Park comprised a relatively large housing complex, the agreed upon security arrangement with the defendant S.W.A.T was for two(2) of its officers to patrol the premises on foot.

Accordingly, this court having found that the defendant Edgewater owed a duty of protection to the plaintiff, and that questions of fact exists as to whether the defendant Edgewater failed to take reasonable security measures, and if so, whether such failure was the proximate cause of the assault on the plaintiff decedent, the defendant Edgewater has failed to establish its entitlement to summary judgment as a matter of law and its motion is therefore denied.B.S.W.A.T's Motion for Summary Judgment

In support of its motion, defendant S.W.A.T. submits, inter alia, the pleadings, the security services agreement with Edgewater, relevant portions of the deposition transcript of the plaintiff Alwin H. Warfel taken on October 28, 2002, the defendant Edgewater through its manager, John Walker taken on June 9, 2004 and that of S.W.A.T. through Theodore W.Banker taken on August 19, 2004. The defendant S.W.A.T. contends that it owed no duty to the plaintiff, who was not an intended third-party beneficiary of its agreement with the defendant Edgewater; that there was no evidence that there had been any prior violent crimes on the property and the sole concern regarding security, were youths congregating, vandalism, graffiti and littering; that the sudden attack on plaintiff by the defendant Marino was not foreseeable and therefore any alleged negligence on the part of S.W.A.T. was not the proximate cause of the attack. In the alternative, the defendant claims the court should grant an order directing the defendant Edgewater to indemnify S.W.A.T. since, pursuant to the terms of its security services agreement, the defendant Edgewater is contractually bound to indemnify S.W.A.T. In determining the motion, the court of necessity will first consider the question of whether the defendant S.W.A.T. owed a duty to the plaintiff.

The question of whether a duty exists in a particular case is generally a question of law for the court. See Palka v. Servicemaster Mgmt Services Corp., 83 NY2d 579, 585, 611 NYS2d 877. ("[T]he definition of the existence and scope of an alleged tortfeasor's duty is usually a legal, policy laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration.") New York courts have narrowly circumscribed the situations in which an agreement or contractual relationship between two parties will be held to give rise to a tort duty to a third-party. See Eaves Brooks Costume Co., Inc., v. Y.B.H. Realty Corp., 76 [*7]NY2d 220, 225,557 NYS2d 286 (1990).

"In our view, the proper inquiry is simply whether the defendant has assumed a duty to exercise reasonable care to prevent foreseeable harm to the plaintiff. In the ordinary case, a contractual obligation, standing alone, will impose a duty only in favor of the promisee and intended third-party beneficiaries and mere inaction, without more, establishes only a cause of action for breach of contract (citation omitted). But even inaction may give rise to tort liability where no duty to act would otherwise exist if, for example, performance of contractual obligations has induced detrimental reliance on continued performance and inaction would result not merely in withholding a benefit, but positively or actively in working an injury'(citation omitted). In such a case, the defendant has undertaken not just by his promises but by his deeds a legal duty to act with due care."

The New York Court of Appeals has since recognized three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care - and thus be potentially liable in tort - to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm'; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely. Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136, 140, 746 NYS2d 120 (2002).Applying the above test to the instant case, this court finds that the defendant S.W.A.T. has met its initial burden of establishing its prima facie entitlement to summary judgment. The burden now shifts to the non-moving parties to show by admissible evidence that triable issues of fact exist.

In opposition to the motion, both the plaintiff and the co-defendant Edgewater maintain that the defendant S.W.A.T. owed a duty to protect the plaintiff. The plaintiff argues that it is a third-party beneficiary of the contract between defendant Edgewater and S.W.A.T. and that the provision contained in the Liability Limitation and Indemnities (hereinafter referred to as "LLI"provision) paragraph at sub. (a) violates New York General Obligations Law § 5-322.1 as the defendant S.W.A.T attempts thereby to limit liability for its own negligence. Further, the plaintiff argues that LLI sub (b) which states that the services provided under the agreement are solely for the benefit of Client (the defendant Edgewater) and that the defendant Edgewater agrees to indemnify and hold harmless the defendant S.W.A.T. from and against any claims made by third parties, and LLI provision sub(d) where defendant S.W.A.T. agrees to indemnify and hold harmless the defendant Edgewater from loss arising out of its performance under the agreement, "cannot be operative, since that would mean that there are, in effect, no indemnifications..." Plaintiff contends that in construing the contract favorably to Edgewater, LLI provision sub (b) should be eliminated in its entirety and in so doing it would create a question of fact as to whether the services of S.W.A.T. were intended to benefit the tenants of Edgewater. The plaintiff concedes that a contractual obligation will not support tort liability in favor of a third party, but points to the exceptions noted by the Court of Appeal in Espinal, supra . However, plaintiff does not attempt to show how any or all of the exceptions might be applicable to the facts of the instant case.

The defendant Edgewater has submitted partial opposition to the defendant S.W.A.T.'s [*8]motion. In fact, as stated in paragraph 3 of the affirmation of Barbara Weiss, "Edgewater supports the arguments contained in SWAT's Motion for Summary Judgment to the extent that plaintiff has failed to establish a prima facie case of negligence against the defendants in that security provisions undertaken at the subject property were reasonable; the sudden attack on plaintiff's decedent was not foreseeable and was committed by a third-party over whom neither defendant had any control." However, the defendant Edgewater argues that should the court find in favor of the plaintiff, i.e that plaintiff has established a cause of action in negligence, then the defendant S.W.A.T. owed a duty to the plaintiff and therefore its motion should be denied. Although defendant Edgewater agrees with S.W.A.T. that the plaintiff was not a third-party beneficiary to their security services agreement, it contends that plaintiff was an intended beneficiary to the contract, by virtue of being one of the shareholders of Edgewater for whose benefit and on whose behalf, the contract was made. Therefore, it claims that S.W.A.T. owed a contractual duty of protection to plaintiff. Further, Edgewater argues that should the court find that defendant S.W.A.T. does not owe plaintiff a contractual duty, it may still hold that a common law duty exists based on the principle enunciated by the Court of Appeals in Eaves Brooks Costume, supra .

Further, the defendant Edgewater contends that in the event the court grants that branch of defendant S.W.A.T.'s motion for summary judgment dismissing the plaintiff's complaint, but determines that the plaintiff has established a cause of action in negligence against defendant Edgewater, it should then deny that branch of the motion that seeks dismissal of Edgewater's cross-claim for indemnification from defendant S.W.A.T. and allow its cross claim to be converted to a third-party action. In this regard, defendant Edgewater contends that it reasonably relied on the defendant S.W.A.T. to provide security services at Edgewater Park, including the "E Ball Field" where the incident occurred. It argues that should the court find that the plaintiff decedent's death was caused by inadequate or negligent security at the premises, then defendant Edgewater should be entitled to recover entirely, by way of indemnification, any damages it would have to pay as a result of S.W.A.T.'s failure to properly perform its duty under the contract with Edgewater. In essence, defendant Edgewater argues that dismissal of its cross-claim for indemnification against defendant S.W.A.T. would be premature until there is finding of liability at the trial of this matter. Edgewater also argues that its agreement to indemnify S.W.A.T would violate G.O.L. § 5-322.1 should the court hold that the attack was a foreseeable consequence of the type of activity that the defendant S.W.A.T. was retained to prevent.

Neither the plaintiff nor the defendant Edgewater have established triable issues of fact sufficient to defeat the grant of summary judgment in favor of the defendant S.W.A.T., dismissing the plaintiff's complaint, on the basis that the defendant S.W.A.T. did not owe a duty to the plaintiff. The defendant S.W.A.T. in its contract with the defendant Edgewater did not make plaintiff a third-party beneficiary and therefore plaintiff's complaint should be dismissed. See Anokye v. 240 East 175th St. Housing Development , supra , 16 AD3d 287, 792 NYS2d 417 (1st Dept. 2005). Furthermore, the non-moving defendants have not demonstrated evidence from which this court could find that the defendant S.W.A.T. owed a common-law duty to the plaintiff under the principles enunciated in Espinal v. Melville Snow Contractors, Inc., supra ,98 NY2d 136, 140, 746 NYS2d 120 (2002).

Hence, this court, having determined that the defendant S.W.A.T. did not owe a duty of [*9]care to the plaintiff, has not reached the other issues raised by the defendant's motion i.e. whether the defendant S.W.A.T was negligent in the performance of its duties, and if so, whether such negligence was the proximate cause of the assault on plaintiff's decedent.

However, this court agrees with the defendant Edgewater that until there is a finding of liability at the trial, the dismissal of its cross claim for indemnification against defendant S.W.A.T. would be premature. This court finds no conflict between the terms of the security agreement and no violation of the General Obligations Law § 5-322.1 as argued for by the plaintiff. Under the agreement defendant S.W.A.T agrees to indemnify Edgewater for claims arising out of S.W.A.T.'s performance of the agreement. Thus the agreement does not attempt to improperly limit S.W.A.T.'s liability for its own negligence, but instead limits S.W.A.T.'s liability for the negligence of others, including Edgewater and third parties. Since the question of liability of defendant Edgewater is yet to be determined, the question of indemnification between the defendants is now reserved pending the trial of the action.Accordingly, the court grants that branch of the defendant S.W.A.T.'s motion for summary judgment seeking dismissal of the plaintiff's complaint and therefore plaintiff's complaint against defendant S.W.A.T. is hereby dismissed. However, that branch of defendant's motion which seeks dismissal of the defendant Edgewater's cross-claim against it for indemnification is denied and the cross claim by defendant Edgewater against defendant S.W.A.T. is converted to a third party claim. See Wayburn v. Madison Land Limited Partnership, 282 AD2d 301, 724 NYS2d 34 (1st Dept. 2001).

Conclusion

For the foregoing reasons, it is

ORDERED that the motion by defendant Edgewater for summary judgment dismissing the plaintiff's complaint and all cross-claims against it is denied in its entirety; it is further

ORDERED that the motion by defendant S.W.A.T for summary judgment dismissing the plaintiff's complaint and all cross-claims against it, is granted only to the extent of dismissing the plaintiff's complaint; it is further

ORDERED that the cross claim by the defendant Edgewater against the defendant S.W.A.T. for indemnification is hereby converted to a third party claim; and it is further

ORDERED that the Clerk shall enter a judgment in favor of defendant S.W.A.T., dismissing the plaintiff's complaint against it forthwith.

This constitutes the decision and order of the Court.

____________________________________________________

DATEDHON. WILMA GUZMAN, J.S.C.- Footnotes

Footnote 1:The defendant Marino was tried and convicted of Manslaughter in the First Degree and sentenced to 3 years 4 months to 10 years in prison.

Footnote 2:It is noted that the purported transcripts of the trial testimony of the eye-witnesses do not bear the required court reporter's certification and as such do not amount to evidence in admissible form to be considered by the court.