Doxey v Freeport Union Free School Dist.

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Doxey v Freeport Union Free School Dist. 2012 NY Slip Op 30889(U) April 2, 2012 Supreme Court, Nassau County Docket Number: 001432/10 Judge: Randy Sue Marber Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT OF TH STATE OF NEW YORK COUNTY OF NASSAU Present: HON. RANDY SUE MARBER JUSTICE TRIAL/IAS PART 14 TOWNSEND DOXEY AND TRACY DOXEY Plaintiffs Index No. : 001432/10 Motion Sequence... Ol, 02, 03, 04 Motion Date... 02/0l/12 -against- FREEPORT UNION FREE SCHOOL DISTRICT TRITON CONSTRUCTION COMPANY , LLC and ULTIMATE POWER INC. Defendants. FREEPORT UNION FREE SCHOOL DISTRICT Third- Part Plaintiff, -against- STRIPER MECHANICAL SERVICE, INC. Third- Part Defendant. Papers Submitted: Notice of Motion (Mot. Seq. 01).............................. Notice of Motion (Mot. Seq. 02).............................. Affirmation in Opposition (Mot. Seq. 01 & 02)....... Reply Affirmation..................................................... Reply Affirmation.................................................... Affirmation in Opposition (Mot. Seq. 01 , 02 & 04... Notice of Motion (Mot. Seq. 03)............................... Affirmation in Opposition.......................................... Memorandum of Law... ..... Affirmation in Reply................................................... Notice of Motion (Mot. Seq. 04)................................ ..... ......... ... [* 2] Memorandum of Law................................................. Affirmation in Reply................................................... Memorandum of Law........................ ........ Upon the foregoing papers , the Motion by the Defendant, Construction Company, LLC (" Triton Triton ) (Mot. Seq. 01) and the Cross-motion by the Defendant , Ultimate Power Inc. (" Ultimate ) (Mot. Seq. 02), seeking an Order , pursuant to CPLR 3212 , granting them each summary judgment Townsend Doxey and Tracy Doxey dismissing the Plaintiffs s (collectively referred to herein as " Doxey complaint together with any and all cross- claims asserted against them; the Defendant/Third- part Plaintiff, Freeport Union Free School District (referred to herein as the " School District" ), Motion (Mot. Seq. 03), seeking an Order, pursuant to CPLR 3212 , granting it summary judgment dismissing the Plaintiffs ' complaint as well as any and all cross- claims asserted against it and seeking summary judgment in it's favor as against the Defendants , Triton , Ultimate and Third- Part Defendant , Striper Mechanical Service, Inc., (referred to herein as the " Striper ) based on contractual and common law indemnification; and the Motion (Mot. Seq. 04) of the Third- Part Defendant , Striper Mechanical Service, Inc. (" Striper ), pursuant to CPLR 3212, seeking an Order granting it summar judgment dismissal of the claims for contractual and common law indemnification asserted by the Defendant , Third- Part Plaintiff, Freeport Union Free School District are determined as hereinafter provided. This action arises out of an accident that occurred Freeport Columbus Avenue School , on June 25 , 2009 at the a school located within the Defendant , Freeport [* 3] Union Free School District. Specifically, the accident occurred at the basement hatch door located at the school where the Plaintiff, Townsend Doxey, an employee of the Third- Part Defendant Striper , was working as a foreman/mechanic to perform HV AC and boiler installation work. As best as can be determined from the papers submitted herein , the Plaintiff s injuries were sustained while in the course of preparation for the installation of a new boiler unit at the school. On the date of the incident , the Plaintiff was standing on a metal ladder within the opening of the basement hatchway door , also referred to as a " Bilco " door , while he and his two co-workers unloaded supplies into the workspace below. At his oral Examination Before Trial , the Plaintiff testified that while he was standing on the ladder , he observed , what he describes as a " shock" protruding into the Bilco door opening. He attempted to move the shock into a standing position so as to remain flush against the door. After moving the shock by hand , the Plaintiff was allegedly strck in the face and eye by the spring mechanism that was encased within the shock' s cylindrical housing. A spring from a list mechanism on the hatchway door came apart projecting a piece of the mechanism into his face. The Defendant , Freeport Union Free School District , was the owner of the subject site. The Defendant , Triton Construction Company, LLC was hired by the School District, as the Construction Manager for the project. The Defendant , Ultimate Power Inc. , was hired by the School District to replace the boiler unit at the school. Ultimate , in turn , retained Striper , for the installation of the boiler Doxey, was employed by Striper as a foreman. unit. The Plaintiff, Townsend [* 4] In bringing this action , the Plaintiff asserts causes of action grounded in common law negligence and violations of New York State Labor Law ~ 200 and Labor Law ~ 241 (6). His Labor Law ~ 241 (6) claim is predicated upon alleged violations of New York State Industrial Code provisions 12 NYCRR ~~ 23- 1.7 (e) (1), (e) (2) and 2327. The Plaintiff also asserts a violation of the " res ipsa loquitor. doctrine of The Plaintiff, Tracy Doxey s claims are derivative in natue. Upon the instant defendant seeks summary judgment motions , each dismissal of the Plaintiffs ' complaint in its entirety. To grant summary judgment , the court must find that there are no material triable issues of fact , that the movant has established his cause of action or defense sufficiently to warant the court , as a matter of law , to direct judgment in his favor , and that the proof tendered is in admissible form (Menekou v. Crean 222 A. 2d 418 419- 420 (2 Dept. 1995)). If the movant tenders sufficient admissible evidence to show that there are no material issues of fact, the burden then shifts to the opponent to produce admissible proof establishing a material issue of fact Here, the Plaintiffs reliance (Id. at 420). upon Industrial Code provisions 12 NYCRR ~~ 23- 1.7 (e) (1), (2) and 23- 1.27 all fail to support his Labor Law ~ 241 (6) claim. Specifically, Industrial Code 12 NYCRR ~~ 23- 1.7 (e) (1) and (2) read as follows: (e) Tripping and other hazards. (1 )Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause [* 5] tripping. Sharp projections which could cut or puncture any person shall be removed or covered. (2)Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from shar projections insofar as may be consistent with the work being performed. While it is settled that these provisions are specific enough to sustain an action under Labor Law Hosp. 395 (2 242 A. Dept. 2004); 343, 349- 350 (1998); 2d 316 (2 v. v. McDonagh Dept. 1997); v. see generally, Rizzutto Ross (Herman ~ 241 (6) for their violation v. St. John s Episcopal Victoria s Secret, Inc. 9 A. D.3d LA Wenger Contracting Co. Curtis- 81 N. Palmer Hydro-Elec. Co., 91 N. 2d 494 (1993)), the Plaintiffs ' claim predicated upon said sections are nonetheless unsubstantiated by the record herein. That is , as to ~23- 1.7 (e) (1), even if this Court is persuaded that the accident site in this case was indeed a "passageway (Dand v. Columbus Centre, LLC 19 Misc.3d 1116(A) (Civil Ct. New York 2008)), there is no dispute and it is abundantly clear that the specific cause of the Plaintiff s injury - the spring - did not constitute debris or a tripping hazard. Nor is there any evidence on this record that it was a " sharp projection " which had it not been for the Plaintiff s interference , would have otherwise " cut or puncture ( any person " including the Plaintiff. Indeed the record confirms that the spring was also encased within a sealed two piece cylinder such that, from the outside , there was no way to tell how it was held together. That is , because of the way the spring mechanism was built with the interior spring entirely hidden from view , no one looking at the exterior of the [* 6] mechanism would have reason to know of the danger posed. Indeed , the Plaintiff himself testified that he failed to recognize that a hazard existed as he used his hand to move the spring mechanism upright so that it would not be in the way. The law is clear that where a dangerous condition such as the encased spring in the discoverable upon reasonable inspection by a layman , instant action is not visible and it wil be considered " latent" and a (Rapino defendant cannot be charged with a constructive notice of that condition New York 299 A. 2d 470 (2 Dept. 2002); Monroe v. v. City of New York 67 A. City of 2d 89 Dept. 1979)). In opposition , the Plaintiff relies solely upon the affirmation of his attorney who is clearly without personal knowledge of the facts. Although this does not supply the Roche evidentiary showing necessary to successfully resist the motion (CPLR ~ 3212 (b); v. Hearst Corp. 53 N. 2d 767 (1981); Rotuba Extruders v. Ceppos 46 N. 2d 223 , 229 (1978)), even if this Court considers the opposition papers , the Plaintiffs attorney attempt to argue that the spring mechanism was a shar projection "which was broken hanging and protruding from the doors , exploded and struck (plaintiff s) face (Aff in Opp to Freeport' s Motion 28), is entirely unavailng. F or example , at his 50- h hearing, the Plaintiff testified that when he first saw the sidewalk door it was already opened (Doxey 50-h Transcript , pp. 36 , 42), that he had been working in the area of the sidewalk door for half an hour before he was injured (p. 42), that in that time , he had gone up and down through that sidewalk door into the basement without any injury approximately six or ten times (pp. 42 , 44), that at the time of *** " " [* 7] the injury, he was standing up on the ladder with his chest at ground level facing away from the building waiting for a co-worker to hand him something (pp. 50- 52), when he was injured. Specifically he testified at his 50- h hearing as follows: Can you describe how (the accident) happened? The shock on the front right corner of the opening was protrding. It was on an angle and it was protrding into the hole, and I thought it was going to be a potential hazard getting caught on something or somebody hitting it , so I tried to stand it straight up, like I imagined it would be if it was working properly, and it wouldn t stand straight up. There was so debris behind it , so I cleared out some rust and rock debris behind it and tried to stand it up again , and it was not staying. So I left it and all of a sudden it went off in my face. Can you tell me, when you were working that day, how long the size of the shock was , Do you know the size of it? (Indicating. ) It was about eight to ten inches. What was its shape? Round , like a cylinder. Like a shock , like a car shock. (50 h Transcript , pp. 52- 54). Now , I mentioned before that your attorney and you have produced a cylinder tube with a spring, a good bit with the spring in the tube , but a lot larger than the tube. Is this item , that' s on the table , par of the mechanism that was involved in your accident? Yes. (50 h Transcript , p. 56). Thus , contrary to the Plaintiff s counsel' s claim , the spring mechanism which injured the Plaintiff was not " broken, hanging, " or "protruding " from the Bilco door. Further , the Plaintiffs own testimony does not support the argument that the spring randomly " exploded" - rather , it is plain from the evidence submitted herein that the Plaintiff s injury was sustained as a consequence of his interference and manipulation the " shock" which housed the spring mechanism. of [* 8] In light of the foregoing, this Court finds that the Industrial Code provision 12 NYCRR ~23- 1.7 (e) (1) cannot form a basis for the Plaintiffs Labor Law ~241 (6) violation claim. Similarly, 12 NYCRR 23- 1.7 (e) (2), which requires owners and general contractors to keep " (t)he parts of floors , platforms and similar areas where persons work ... free from accumulations of dirt and debris ... insofar as may be consistent with the work being performed, " is also inapplicable to the facts at hand because the spring in the door which allegedly caused the Plaintiff s injuries was clearly neither debris nor a tripping hazard (O' Sullvan v. 7 N. Y.3d 805, 806 (2006); IDI Constr. Co., Inc., Smith v. New York City Hous. Auth. 71 A. D.3d 985 , 987 (2 Dept. 2010)). Moreover , as stated above , the spring cannot be found to constitute a " shar projection(J" which injured the Plaintiff within the meaning of ~23Dept. 2002); McAndrew v. 1.7 (e) (2) v. (cf Kerins 216 A. Tennessee Gas Pipeline Co., The Plaintiffs reliance upon Vassar Coli 293 A. 2d 514 (2 Kerins v. 2d 876 (4 Dept. 1995)). Vassar College, supra in opposition to the School District' s motion , to support his claim that there was a violation of ~~ 23- 1.7 Kerins the plaintiff was injured by a (e) (1) and (e) (2) in this case is misplaced. In cracked pane of a glass door (an obvious passageway). The Second Deparent held in that case that there was an issue of fact as to whether the cracked pane constituted a sharp projection as contemplated under 12 NYCRR ~~ 23- 1.7 (e) (1) and (2). Here, the spring which purportedly injured the Plaintiff was simply a piece of the basement door and was not the door itself. Further, in this case , the Plaintiff was not injured until he interfered [* 9] the door and the plaintiff was injured with his use of Kerins with the spring mechanism in the door; in of it. because Finally, based upon the papers submitted herein , this Court finds that the Plaintiffs allegation that his 12 NYCRR ~ 23- 1.27 Labor Law ~241 (6) claim can be supported by a violation of is also unsupported. Section 23- 1.27 , which applies raised by means of a jack (Wegner , plainly has no application to this case & Trust Co. of Conn. Natl. Assn. Dev. , LLC 28 A. D.3d 1133 (4 F or these reasons 298 A. 2d 211 212 (1st Dept. 2002); to objects State St. Bank v. v. Smith LeFrois Dept. 2006)). , each of the Defendant's motions, inasmuch as it seeks summary judgment dismissal of the Plaintiffs Labor Law GRANTED. ~241 (6) claim is The Plaintiff s allegations that each of the Defendants violated Labor Law 200 and the common law are also unsubstantiated by the record herein. Labor Law ~ 200 is a codification of the common law duty of an owner or (Rizzutto general contractor to provide and maintain an safe construction site Contracting Co., supra at 352; Comes v. v. LA Wenger Gas Corp. 82 N. New York State Elec. 876 (1993)). Labor Law ~ 200 claims fall into two broad categories: those involving injuries arising from allegedly defective or dangerous premises conditions and those (Chowdhury involving injuries arising from the manner in which the work is performed Rodriguez 57 A. D.3d 121 (2 2008)). It is plain Dept. 2008); Ortega that the Plaintiffs claims in v. Puccia 57 A. D.3d 54 (2 Dept. this action fall under the former class of cases. Thus , to prevail on such a claim , the Plaintiff must show that the Defendant either [* 10] created the dangerous condition or had actual or constructive notice of the condition (Ortega v. Puccia supra; Slikas v. Cyclone Realty, LLC 78 A. D.3d 144 (2 Dept. 2010)). In that respect , each Defendant herein has sufficiently established that they did not create the dangerous condition of the rusted spring housed in the cylindrical shock" which injured the Plaintiff. Indeed , the Plaintiff, in opposition to all three motions for summary judgment does not refute this fact or present any evidence raising an issue in this context. Similarly, each Defendant has also demonstrated notice - actual or constructive - of the specific that they did not have condition that injured the Plaintiff. In opposition , counsel for the Plaintiff baldly argues (without the benefit of a supporting affidavit by the Plaintiff non- delegable supra) that the Defendants , Triton and Ultimate , had a duty to enforce safety on the job site by contract and law and that even though Triton was hired as the " construction manager " the title by which a par is known is not determinative on the issue of whether that part is considered an " agent" of an owner for purposes of potential liabilty under the Labor Law. These arguments fall short of presenting a triable issue of fact. Clearly, Triton had no ownership interest in the subject propert. Thus, any authority it had over the project could only come from and was necessarily governed by the terms of the written contract pertinent part , as follows: between it and the School District , which stated , in '" [* 11] The Construction Manager is not responsible for contractor s safety means and methods... Construction Manager shall not have supervisory control or authority over the safety practices or procedures undertaken by any of the contractors... the Construction Manager shall not have control over or charge of the work and Construction Manager shall not be responsible for construction means , methods techniques , sequences or procedures and/or safety precautions and programs in connection with the work of each of the Contractors , since these are only the Contractor s responsibility. (Motion Sequence 01 , Aricle 7 Exhibit L (School District- Triton Contract), Aricle 2 4 (c); 7)). In stark contrast to the unambiguous wording of the contract provision above , the Plaintiff fails, in opposition, to cite to a single contractual provision supporting his claim that Triton had any such D.3d 949 (2 (Rodriguez authority v. JMB Architecture, LLC, 82 Dept. 2011)). Further , the testimony of Samuel Carder , the project superintendent employed by Triton , confirms that Triton s duties did not extend to the contractors and methods " or to the safety of workers who were working at the site. In fact , means Carder specifically testified that he never supervised the workers from Striper at the site. While Carder does state at his sworn deposition that he would tell the foreman for Ultimate if he saw an employee of one of Ultimate s subcontractors working in an unsafe maner , Carder does not state that Triton had actually been conferred the authority to stop work. In any event , as stated above, this action falls outside the series of Labor Law ~ 200 and common law negligence claims that involve injuries arising from the which the work is performed; rather, in order to defeat the Defendants manner prima facie showing of entitlement to judgment as a matter of law , the Plaintiff is required to present [* 12] evidence that the Defendants failed to provide and maintain a safe construction site and that the Plaintiff was injured from the allegedly defective or dangerous conditions at the premIses. Here, this Court finds that the Plaintiff has preliminarily failed to present any evidence on this record that Triton functioned as an agent of the owner of the premises or as a general contractor was with the requisite authority to control or supervise the work or the condition of the work site. As to any Defendant's notice of the alleged dangerous condition which injured the Plaintiff, counsel for the Plaintiff argues in opposition that the frame of the subject door was visibly rusted and that Samuel Carder had previously recommended that the door be replaced. This, the Plaintiff submits , constitutes sufficient notice of the cause of his injuries. Indeed , counsel for the Plaintiff maintains that Mr. Carder s testimony to replace the rusted Bilco door in the upcoming bid is " clear" evidence that " Mr. would not suggest replacing the doors if they did not pose a safety hazard. " Carder This argument is speculative at best and , as such , falls short of presenting a triable issue of fact. First , this Court notes that a more complete and accurate review of Mr. Carder s testimony reveals that when he recommended the door be replaced it was because of the rusted frame and not because of any visible safety hazard posed by the subject spring mechanism. Further , the mere fact that the door frame may have been rusted does not impute notice that the subject spring mechanism a safety hazard of the tye that allegedly caused the accident which injured the Plaintiff posed actually (Rapino v. City of New York [* 13] supra; v. Mingone Ardsley Union Free School Dist. Dept. 1995)). 2d 463 (2 215 A. Indeed, as stated above , where a dangerous condition such as the encased spring in the instant action is not visible and discoverable upon reasonable inspection by a layman , it wil be considered " latent" v. (Rapino that condition and a defendant canot City of New York supra; be charged v. Monroe with constrctive notice of City of New York supra). Further, this Court cannot overlook the testimony of Taurin Robinson , the Head Custodian at the subject school , who testified that he routinely inspected the Bilco doors as part of his inspections but never noticed a problem or a defect in the door that would require a conclusion that the doors were hazardous. Mr. Robinson also testified that he never received any previous complaints regarding the Bilco doors prior to the subject accident , nor did he ever observe a spring looking metal device anywhere beneath the Bilco doors at any point prior to the subject accident. It is well settled that in order for a defendant to have had constrctive notice of a defect, that defect must be either visible or apparent or discoverable upon a reasonable inspection v. (Curiale v. Sharrotts Woods, Inc. 67 N. American Museum of Natural History, Pentecostal Church 304 A. 9 A. D.3d 473 (2 2d 798 (2 2d 836 citing Gordon Dept. 2004) (1986); Lee v. Bethel First Dept. 2003)). A " general awareness " of some dangerous condition is legally insufficient to charge the defendant with constructive notice of the specific condition which Museum of Natural History, supra; allegedly caused plaintiff s injury Piacquodio v. (Gordon Recine Realty Corp. v. 84 N. American 2d 967 (1994)). Here, while there is evidence that the door was in a rusted condition, this alone is [* 14] insufficient to give rise to constructive notice of the defective condition which injured the Plaintiff supra; (Mingone Ferris v. v. supra; Ardsley Union Free School Dist., 174 A. County of Suffolk, Counsel for 2d 70 (2 the Plaintiffs component as a whole from the latent spring mechanism differentiate between the shock , i. e., the hidden and enclosed sprIng mechanism that actually caused the Plaintiffs injury, evidence on this record that the City of New York Dept. 1992)). failure to defect v. Monroe is fatal. There is no testimony or which injured the Plaintiff was visible within its casing. Indeed, the Plaintiff s own testimony confirms that he was not able to observe any perceived danger from the concealed spring mechanism that actually caused his injury. The Plaintiff s counsel' s argument that the construction contract Ultimate entered into with the School District obligated Ultimate to timely notify the School District of concealed or unkown conditions in the context of this litigation is also meritless. A plain reading of Aricle 18 , Section D of the Ultimate- School District contract confirms that said Aricle specifically deals with " Claims and Disputes " between the parties to the contract and addresses the need to give notice of any possible hindrance to the completion of the work and project as contracted for by the respective paries. Said clause, read in conjunction with Article 18, Section A which defines inter alia a " claim " does not obligate Ultimate to timely notify the School District of concealed or unkown conditions in the context of, for example, this litigation; rather the contract provisions deal instead with discovery and notice of potential conditions that may '" [* 15] hinder Ultimate s contract performance. It is plain that the encased spring did not , at any point, hinder any worker s performance , including the Plaintiff. Indeed the Plaintiff himself testified that he traversed the ladder and went in and out of the Bilco door several times until he was idly waiting on the ladder for his co-worker to hand him some materials. It was during this idle time that the Plaintiff noticed the " shock" which, after his handling and manipulation , caused him injury. Thus , the Plaintiffs reliance upon the contract provision in opposing Ultimate s motion is misplaced. Accordingly, in the absence of any evidence by the Plaintiff that any named Defendant had either actual or constructive notice of the " condition " which allegedly caused the Plaintiff s accident , his Labor Law ~ 200 and common law negligence claims DISMISSED. against them are also Finally, the Plaintiffs res ipsa loquitor is also claim that the Defendants violated the doctrine of DISMISSED. In order for the Plaintiffs to invoke the doctrine of res ipsa loquitor they must establish that (1) the event is one which does not ordinarily occur in the absence of someone s negligence; (2) the event was caused by an agency or instrumentality within the defendant' s exclusive control; and (3) the event was not due to any voluntary action contribution by the plaintiff (Dermatossian v. New York City Tr. Auth. 67 N. or 2d 219, 228 (1986)). Here, the Plaintiff has failed to establish the second and third elements of this claim. There is no evidence that any of the named Defendants had exclusive control over the subject spring mechanism (Miles v. Hicksvile UFSD 56 A. D.3d 625 (2 Dept. 2008); [* 16] Molina v. State of New York 46 A. D.3d 642 (2 Dept. 2007)). Nor is there any evidence that the Plaintiff, Townsend Doxey s voluntary action in manipulating the subject spring immediately prior to his injury, did not contribute to the accident. For these dismissing the Plaintiffs reasons , the Defendants ' motions for summary ' complaint are judgment in its entirety. GRANTED Having dismissed the Plaintiffs ' complaint in its entirety against the Defendants, Triton, Ultimate and the School District, the Cross- claims for common law indemnification and contractual indemnification against each Defendant are also DISMISSED. As to common law indemnification, Appeals stated in Mas v. Two Bridges Assoc. 75 N. contribution and indemnity rules is the equitable multiple defendants. In the law is settled. As the Court of 2d 680 (1990), " (t)he purpose of all distribution of the loss occasioned by furtherance of that purpose , the courts have granted relief in a variety of cases in favor of the part who , in fairness , ought not bear the loss, allowing it to recover from the part actually at fault" (Id. at 690). The "theory " behind the concept of common law indemnification " is to shift the burden of liabilty from defendants that are only vicariously/statutorily liable to the defendants that are actively negligent v. Professional Data Mgt. 259 A. (Id; Correia 2d 60 (1st Dept. 1999)). For this reason , in the case of common law indemnification , the one seeking indemnity must prove not only that it was not guilty of any active negligence, but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident for which the [* 17] indemnitee was held liable by virtue of Professional Data Mgt. D.3d 493 (1 supra; Priestly Dept. 2004)). Here, v. (Correia some obligation imposed by law Montefiore Med. Center/Einstein Med. Ctr. since there has been no demonstration of any of the Defendant's negligence in any respect supra there is no predicate for a common law indemnification claim against them. Similarly, the contractual indemnification claims by against the Defendants, Triton and Ultimate are also the School District DISMISSED. As against Triton , the School District relies upon Aricle 9, Paragraph 4 of it' s construction agreement with it which states , in pertinent part, as follows: To the fullest extent permitted by law , the Construction Manager (Triton) shall indemnify and hold harmless the Owner (School District) and its board, officers and employees from and against all claims , damages , losses and expenses resulting in bodily injury and/or propert damage , including but not limited to attorneys ' fees the extent arising out of or resulting from the negligence of the Construction Manager, or any subcontractor/consultant of the Construction Manager excluding any claims, damages , losses and expenses arising from and limited to the extent of the Owner s own negligence. Thus, based on the language of this provision , the indemnity obligation of Triton could only be triggered for claims and losses arising out of Triton s actual active negligence. However, as stated above, since there is no evidence that Triton could be charged with active negligence in that Triton could not be found constrctive notice of the latent " condition " which have had actual or allegedly caused the Plaintiff s accident , Triton s motion for summar judgment dismissing the School District' s Crossclaim predicated upon contractual indemnity is also GRANTED. [* 18] Further , indemnity clauses in contracts and agreements construed in order to avoid delegating a duty Sinorm Deli Inc. v. (Weissman 88 N. which was not intended 2d 437 (1996)), 2d 938 to be and the right to indemnification depends upon the specific language of the Duke/Fluor Daniel 221 A. are to be contract strictly assumed contractual (Gilmore (4th Dept. 1995)). As to the contractual language contained within the written agreement entered into by Ultimate and the School District indemnification is only owed if the underlying claims are based upon a negligent act or an omission by Ultimate. Ultimate is not required to contractually indemnify the co- defendants without a showing that, the claim arises from a negligent act by Ultimate or one of its agents. Since there has been no demonstration respect 293 A. (Naclerio , the indemnification clause has not been triggered 2d 588 (2 v. C.R. Klewin, Inc. Dept. 2002)). Accordingly, the Defendant, Ultimate is also of Ultimate s negligence in any s motion seeking summar judgment in its entirety. GRANTED For these reasons , the School District's motion seeking summary judgment against the Defendants , Triton and Ultimate , based on contractual and common law DENIED. indemnification claims is Insofar as the School District seeks summary judgment against the Third- , based on contractual and common law indemnification , Part Defendant , Striper application is also DENIED. said [* 19] In the third part action , the School District seeks damages for breach of contract and indemnification for all or part of any damages that it may sustain in the main action as a result of Striper s alleged negligence. The School District claims that pursuant to the Insurance/Indemnity agreement between Striper and Ultimate , it , as a beneficiary, is entitled to full or partial indemnification from Striper. In addition, the School District also seeks common law indemnification from Striper , the Plaintiffs employer. Having determined that the School District is entitled to summar judgment dismissing the complaint, however , the issue of indemnification from the Plaintiffs (Frisbee employer is academic v. Cathedral Corp., 283 A. 2d 806 , 807- 808 (3rd Dept. 2001)). Accordingly, this branch of the School District' s motion is herewith DENIED. Under these circumstances and for the reasons stated above, the Third- Part s motion seeking summar judgment dismissing the School District' Defendant , Striper Third-part complaint is also DENIED as moot and academic. The parties remaining contentions have been considered and do not warrant discussion. All applications not specifically addressed are herein DENIED. This shall constitute the decision and order of this Court. DATED: Mineola , New York April 2 , 2012 Hon. &r Sne Marber, J. ENTERED APR 03 2012 NASSAU COUNTY COUNTY CLERK' S O" ICE

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