Great Northern Ins. Co. v Zen Restoration, Inc.

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Great Northern Ins. Co. v Zen Restoration, Inc. 2012 NY Slip Op 31401(U) May 23, 2012 Supreme Court, Westchester County Docket Number: 105179/2008 Judge: Judith J. Gische 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] [* 2] Great Northern Insurance Company aldo Margarat Summers, DEcwioW ORDER index No.: 1051792008 Saq. No.: 004 ., I PRESENT! Zen Restordon, Inc., and Patrick Gallagher, Defendant (8). - -X MAY 25 2012 Redtation, as required by CPLR 8 2219 [a] of the papers MnsidW@dIn the mvbw of\JEW YORK COUNTY CLERK S OFFICE thls (these) motion(s): Papm Numbered Gallagher s n/m (CPLR 3212) w/TC, SR affirms, exhs ......................... 1 Graat Northern opp wl PAT &Inn, exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Gallagher reply w m C , SCR affirms, exlw .................................. 3 Various stips of ad] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Upon ihe foregOng papers, the dedslon and order of the court is as h h w s : GWHEJ.: This Ee an adon by Great Northern Insurance Company ( plaintiff) as subrogee of its Insured, Margaret Summers (%umrnersl) to m u p monies tt paM In connection with her property damage claim. Prwmntly M o m the mutt i8 a post-note of Issue motion by defendant Patrick Gallagher ( Gallagbf) for summary judgment dkmisslng phlr 3 amplaint Gallagher also seek8 summary judgment on his c~os8 claims against oo-ddkndarrt Zen Reutomtion, Inc. ( Zen )and an order Setting thls matter down for an Inquest on the issue of legal fees and expenses. Gallagher s crow claims am for indemnHtcaUon (common law and contraduel, additional Insured status and -Page 1 of 1 8 [* 3] o c m claims refmbumment of certain payments he haa mede. Zen ha$ against Gallagher . Plaintiff and Zen each separately oppose Gallagher s motion. f Slnce this motion is.timely and brought in compliance with the requlremants o CPLR 3212, summary judgment relhf is available (CPLR Q 3212; m,2 NY3d 648 [ZOW]). The court s decbion and order Is v, Cltv of N w 88 follows: Fa* Unless otherwise stated,the following facto are established, unrefuted or undbputed: Summom, plainttffs inaured, is the owner of cooperative2apartment #8R at 43 West 13 Street, New York, New York ( plalnWs apartment ). Gallagher is the owner of cooperative apartment MPH, located in the a m building ( Gallaghats apartment ). a Summers apartment Is diractfy b l o w Gallaghds terrace. Dasi~~uarenovating hk apartmant, Oallagher, in 2004, sought and obtahed of board approval for the proposed projed by enterlng into an alteration agreement wlth The G a s Houm Coopsrathre Corporation ( alteration qrasmant ). Once he w88 ls approved, Gallagher vetted bids by prospective contractors and chose Zen to do the work. Galfagherand Zen entered Into a renovation contract made as of October 23, 2004 ( movatlon contract ). The akeratlon a g m n t ia Incorporated by riyferancein the mnovatlon agreement and each of the agrsaments contain indemniflcatton Pursuant to this caurt s prlor order of October 6,2011 ( preclusion order ), tha court gmntad Gallagher s motion for en order of preclusion against Zen, precluding k from introducing certain documents as evidence at trial. %e complaint erroneously Identitlea thk and the Gallagher apartmsrrt m being condominiums. -Page 2 of 1 s [* 4] provisions discussed later I this declslan. n While Zen was renovating Gallagher's apartment, them were t o or more water w leaks from his apartment into Summers' apartment. The flrst leak was on August 13, 2005 while Gallagher was away on vacation. The second leak occurred on Dbcamber 9,2005. During the course of the renovdon work, other tenants experienced property damages, ostensibly caused by Zen. After those tenants threatened legal action, Gallagher made certain payments to them mtmMng their claims. Gallagher also paM the coop a sum of money for damage to certain common elements and it Is claimed by Gallagher that the property damage was e a u d by Zen's shoddy work. Following the leaks Into her apartmant, Summers submnted a claim to h w Insurance provider (Great e Northern, plaintill herein). Plaintiff pald her the mum of $234,930.44, thereby becoming subrogated to Summed rights against the defendan$. Them I only one C s B U of action asserted In the complaint which ~ rtq~llgence.Plaintiff claims that Len and Gallagher, their agenb,..fallad and neglected to: A. Perform, manage, monitor, operate, control, Inspect, regulate and supervisa the work and acbivltim af themselves, their agents, servants, employees andlor repreaentmtlvaa In the renovation work, labor and smlces in the Qallaghar premises so a1 to pmvont, llrnlt or ellrnlnate the entry ofwafer into the property and premises of Summem ... B. Exerclse reasonable care and control over the renovation work in the Gallagher premlws so as to eliminate the water from within the Gallslgher premises ... E. Adequately and properly train, supervise, monitor, control, regulate and otherwise instruct their agent, servants, employees and representative3 In the renovations at the Gallagher premises ... -Page 3 of 10- Is for [* 5] Gallagher has merted seven (7) m s s claims against Zen each of whlch pertaina to Indemniflcatlon, contrlbution, braach of contract (failure to obtain Insurance) and for reimbursement. The renovation contract contalns the followfng Indemnity provision: To the fullest extant permhd by law, Contractor (Zen) shall indemnify, defend with couneel masonably acceptable to Owner (Gallagher), and hold harmless Ownar, the Cooperative Owner's Reprasantathwand Owner's architects...from and against all elalms, damages, loasera and expen-, lncludlng without limbtion, reasonable attorneys' fees and diabursements, arlslng out of or resulting from (i) a breach of any of Contradofa warranties or mprasentations set forth herein, (10 any dsfauh by Contractor in its obllgatfons hereunder, (iii) the negllgencs of Contractor, any empbyea or agent of Contractor, any of Ps t subcontractors, or anyone dimctly employed by any of them. M & 4 Remwotron o n i m c f .G Article 10 of the renovation contract separately provides that Zen has to obtain and maintain insurance for the protection of tha owner (Gallgher), the coop and its managing agent: Conimctor...shall purchase and maintain rcuch Imumnca a8 wlll protect R from chims... damages to proparty for whkh may arise out o or result h m Contractor's f operations under the Contract Documsnt.. Conlmctor... s. shall maintain insurance coveragspurnuant to, and without limitation, a general liability poky and an owner's contract protectlva policy-for proparty damage, liability and personal injury for the subject pmject 0.e coverage not to be ahare with Contractor's other pmjects) In the sum of at h s $2,000,000for each occumnce rand at $6,000,000 aggregate. The Insurance wveraga mbrred to In the two preceding santencea shall name a3 additional Insumd parties Patrick Gallagher, The Glass House Cooperative, J&C Lamb Management Cop. ... Artiak io, U m O M t h cot-tmb [* 6] Oallaghar's alteration agrwment wtth the coop contains the following provision: By e x d n g thls Agrwmsnt, I agree to undertake and hold harmlessthe Corporation, the Managing Agent and the tenants and ctccupants in the Bulldhg, on an after tax basis against any cfalrns for damage to persons or proparty suffered $8 a result of the Alterations, whether o not cauaud by negligence and any expenses r (including, without limitation, attomeya fees and disbursements) lncurrsd by the Corporation in conmctlon therewith. If requested, I shall pmcura a bond or agreement fiom an insurance company, aaeptabb to the Corporation, Insuring performance by me of the provisions of t i paragraph... hs Pam. 0, A#srStlon Apwenmnk There are several riden to the atterntian agreement. The afteration agreement requlres that before any contractor is permitted to work in an apartment, the unit owner most "3.(d) have each of the contractor(s) and subcontractor@)execute the Indemnity and insurance Rlder (the 'RMer") annexed herreto 88 RMer Ill and the Rider shall be exprassly incorporated by reference Into and become a part of any an all agreement(s) made with my contractor..." The Rider a b ha8 t axeoutad by the cuntmdor and an o executed copy provided to the coop 88 p m f it was actually signed. Rider 111 was signed by Gallaghsr and Bernard Sobus, Zen's President. The rider provldes that %e following provislom am hereby expressly Incorporated by reference into and hereby form Ipart of the agreement between m G c k & I Gnneral o C w and dated 10123104 (the "Agtwmemt")." RMsr 111 contalna the following indemnity clause: A INDEMNI'IY . To the fullest extent permitted by law, (the "Contractor) agrees to Indemnify, defend and hold harmless Ths Glass Housa Coopmtfve (the "Cooperative")and the additional parties llsted at the end -Page 6 of 19- [* 7] o this paragraph as addltlonal I n d e m n b , if any, their f officers... (herrelnafter collectively, 'Indemnitee" on an after-tax bmis from any and all claims, suit&, damages, liabilities, profesalonal fees, including attorneys' fees, coats, court oosts, expenses and disburmmts related to...property damage...against any of the Indemnitee (sic) by any person or Rrm, adsing out o or I connection with f n or as a consequence of the performance o the work of f the Contractor under the Agreement.. +*+ The p a w s expressly agree that thh lndsmntffcatlon agreement conternplates 1) full Indemnity in the, event of lhblllty Imposed against the indemnltas without negligence on the part of the i n d e m n k and solely by reaeon of statuts, opbratlon of law or othefwi#; and 2) partial Indemnity I the event of actual negligenca on the n part of the lndernnltaa or any one of them, either musing or contributing to the undertying d a h I which case, n Indemnillcatfonfor the negligent Indemnitee will be limited to any liability imposed over and above that percentage attributable to actual fault, whether by statute, operatlon of law, or othenrvbs. Where partlal indamntty b provided under this agreement, mb, professional feee, attorneys' fees, expenses, dlsbursemenb, etc., shall be indnrnnifisd on a pm rata basis. The Contrador will purchase and maintain such Insurance as will protect it from any costs and expenses relating to the foregoing, including without limitation, wntreetual coverage Including the foregoing indemnity and shall provide Owner (Gallagktr) with a policy or pollcies ovidendng same. Such indemnHlcation shall opefate whether or not Contractor ha8 p l a d and malntatned the Insurance 8pecMd In thie indsmntlleatlon clause. W o n B af Rider 111 seta forth the type of insurance to be provided by the contractor, whlch includes a commerdal general ilabilky policy o "at leest $2,00O,MIO f per omrrence and In the aggmgate per location." Argumenb -Page 6 of 19- [* 8] Gallagher argues that he is antitled to summary Judgmentwith respect to plaintiffs complaint and hia worn claim wainst Zen becaw: 1) he was not negligent, 2) Zen was negligent (and ha8 admitted itS negligence), 3) phintiff has not pleaded, nor can she prove, how Gallagher was negligent, 4) the only claim In the complalnt I8 for negligence; there I no clalrn for claim against Gallagher for contractual indemnihtion, s 5) he Is not v h ~ u s l liable for Zen's nsgflgence and 6) under the renovation contract, y Zen )s obligated to hdemnlfy him and hold him harmless. To support h b motion Gallagher prwides the EBT testimony of Gregory Langer, Zen's on-slte supurvisor. Langer t e s W that water panehted a beam supporting the French door In Gallagher's apartment. According to Langwr, "[the h m Jwas waterproofed, but not g d enough to stop the water...' When asked whether he w ~ b l "awam of anything Patrlck Gallagher did that may have caused or contributed to hake In Ma. Summers' apartment?" Langsr answered: "No.' Langar abo t e s W that afiar the first leak, Zen took certain remedlai rneasum to provent a leak from happening again. One measure was raising their *curbs.' Thus, Gallagher argue8 he waa not negligent in the happening of the leak. Other deposition testimony redied upon by Gallagher indudes that of 8 non-party tenant in the bullding who dairns someone working on Gallagher's apartment damaged the ampressor to her air conditioning untt and the testimony of Sobus, Zen's pmident. Gallagher claim that Sobus' testimony Is littb more than "feigned Issues of denial' because he testified that Summers "made up" her claim of property damage, Sobus denies Zen did any of the work that Langar testified that Zen perfomxi. Sobw also claims that correspondence "sent" by a Zen smployee 1 not authentic because the s -Page 7 of 19- [* 9] employee was fired before October 21,2005, the date on the letter. The letter, on Zen shtlonary, la unsigned but has the name of Lukasz Dynia, Zen's pmJaCtmanager printed at the bottom. The latter states: "By this tlms you must think we take a specla1delight In ceuaing damage to your apartment. It Is embatrasslng to inconvenience any customer. Red faced and ambite, 1 aak your forghrenesa and offer you our best interior workera to fix your apartment...I am very sorry about the whole situation. We will do our beat to mhlrnize the negative, impact of the leaks...' Gellagher claims the letter Is an admkfon of IlabllIty by Zen's ampbyaa/agant. Gallagher argues that Zen was obllgatsd to procure and maintain liability Insurancefor his beneftt and, despite a certfncate of Insurance naming him as an addMona1 insured, Zen has refused to provide him with a defense. Consequently, Zen has, according to Gallagher, breeched Artida 10 afthe renovation cantract (wpm)and, therefore, Gallagher seeks summary judgment on his contrsctual In opposttion, fan arguss that the renovation conhct mntalns conflicting Indemnity provisions and Gallagher I choosing the provision which most favors him. s Zen points out that under the alteration agrement, Zen oniy has to indemnify the coop "and the addltlonal partles listed as fndmnit-..." in Rider 111. The only addMona1 party listed b "J&C Lamb Management Cop.," a non-party to this action. Thus, according to Zen, R has no contractual obligation to lndemntfy Gallagher under the akeration agreement since he is not a qualifled Indemnitee. Zen separately argues that even under the Indemnity provblon in the renovation contract, which Gallagher relies on, Zen must flrst ba found negligent before b -Page 8 of 19- [* 10] Indemnflcation obligation is trlggarad. Zen argues that, although Gallagher has moved for summary judgmnt on his m 8 daims for indernnlflcation, Zen has not been found negligent nor hsls Gallagher met his burden of eliminating any triable kuser of fad about Zen's negligence. Zen points out that Dynla's letter Is 0n unsworn, unaignad document and, therefore, not evidence in admissible form. Zen also discounts Langer's depitlon teestlmony about improper watarprobflng causing the Rrst leak into Summers' aparbnent because his statements are merely opinion and, therefcm, spwktive. Zen argues that, In any event, Langer did not testrfy about what mlght have caused the m t md incumion of w t a r In December 2005 arid there t a triable Issue of fact whether a 8 clogged terrace drain caused the leak. Zen provides an un8worn memorandum dated August 15,2005. The memorandum, signed by Sobus, Zen's prasldent, &tea that "becauseof Ithe] flood condition mused by severad rain and insufndent draln capacity on the North part of the roof temce, we would recommend revising the orfginal dmin design and adding [an] addltlonal outlet to prevent such a situation from happening in the future..." Zen point8 out that at his EBT, Langer a b testified about there being a dogged drain pipe on Gallagher's terrace. Sobus, Zen's president, states in hk sworn affidavit that the leaks were due to "pmdsting probfem8not property addressed by the building and due to the work of [non-party] DNA Contracting, a roofer hired not by Zen, but by Gallagher andlor the building." Sdbus references m i correspondencefrom Gallagher about "cmdft"for the al roof deck since appamr'ttty it will be done by another contractor. -Page of IO- [* 11] PlalntM contends tha defendants were negllgent in the perlormance, management, operation and control of themeehres, their agents and employees fn the renovation w o k Like Zen, plalntlff contends that Gallagher is disragarding the indemnlflmtlon provierions in the alteration agreement and she claims that Gdlagher Is liable to her under that agreement. She dalms hurther that a his EBT, Gallagher t acknowledged his responsibility to her for her damage$. According to plalnttrr, them wem more than just two incursions ofwater from Gallaghets apartment Into hers and, not only was he WBB aware of this, it was his responsibility to repair those darnagm. Gallagher contends he is an additional insured under Zen s insuranca policy and he believes the contractor secumd 8 policy, as required under the rtnovatlon conhact, but when he tendered hi8 defense to Zen, Zen did not take any action. Thus, Gallagher contends Zen has brsachd Its contractual obligation to hlrn by assuming hb dafanw. Zen argues that it I not an fnaurance company, it cannot defend Gallagher and, in any s event, Zen d m not have R contractual obligation to have Gallagher named as an addttlonal Insurd bscaurra under the abration agreement, the only additional Insured Is the managing agent. Notwithstanding those arguments, Zen provides coples of two Insurance policii each showing that Oallagher is a named Insured. Oallagher contends he made pwyrnsnta to varbus tenants I the building and the n coop itself to settle claim8 that he would haver otherwise haw k n the subject of lawsuits against him. He provides c o p k of checks showlng these payments. He contends that the payments ware necessitated by Zen s negligence and that he must be reimbursed for fhom payments. -Page 10 of 1 9 [* 12] Dlrcuulon On a motion for summary judgment, the movant must make a prima fade showing ofentitlement to judgment a8 a matter of law, tsnderiw auffldent evidence to eliminate any material issues of fact from the a4 [ Wlnmrad v. New York Untv. Mpd s 64 N.Y.2d 851,853 [1985J). Once mat, thb burden s h h to t e opposing party h who must wbmit evidentiary facts to controvert the allegations 8et forth in the movant8 papers to demonstrate the exisitence of a trlable issue of fact Jlloerp, 68 N.Y.2d 320,324 [1986]; &kernan v. -C YQ&, 49 N.Y.2d 557 [1$SO]). "A court should not consider the merits of a new theory of recovery, raised for the first time in opposttion to a motlon for summary judgment, that was not pleaded In the complaint" (Ostrox v. Rnzbruch, 81 A.D.3d 147, 154 [ l aDept 2012D. Plaintiffs complalnt alleges that the defendants ware nqligarnt. There I8 no mantlon in the complaint or bill of partiwlars about any of the Indemnity provbions, nor does plalnbm rake its current claim, that the lnderrnnifiwtionprovisions am inconsistent. Arguments by plalntlff and Zen, that Gallagher Is focusing on the renovation a g r m s n t because it is favorable to him, are raked for the very first time in opposition to Galfagher's motion for summary judgment. Although Zen ha3 asasrtsd several affimative defense8 in its answer, those defenses indude lack of standing, contributory negligence on the part of the subrogor and fallurer to mitigate damagss. The Indemnification provlslons of alteration agreement and renovation contract were not ralssd. Themfors, plalntWs new -Page 11 of 19- [* 13] theory of recovery and Zen's new defense cannot and do not defeat Gallagher's motion for summary judgment. Even were the court prsuaded that thae are not new theories of liabllrty, the Intwpretatlon of the indemnity pmvlsbns propounded by #e plaintfff and Zen is unpenuaslve. On a motion for summary judgment, it is for the court t d d d e any o issues of law that are raised (lilndes v, W& 303 A.D.2d 459 [2nd h p t 20031). The Issue of whether a written eontract I ambiguous I an fsaue of law that should s s ba decided on summary judgment ( J a m v. Pm,21 A.D.2d 969 [lM 1W]). Dept For the ma80n8 that follow, the court agrees with Gallagher, that there Is no Inconsistency among the, indemnity pmvlslons, they are mdly harmonlred. and plalntff is not e n W to indamntfication by Gallagher. Whereas the altemtlon wretement indmnlty provision k for the benefit of the coop and Rider 111 protscEe the coop's Inbraits and the interests of othera afflllated wlth or lhrlng In the coop,the indemntty proviaions in the renovatlon contract (Articlss 5 and 10, set forth supre) am for Gallaghatar protection and benefit. Summern I8 not a party to elther of them agreements. Gallagher, as a proprietary lassee, sought and obtained parmission from the wop for the renovation work, provMed "[ha] agree[q to undertake and hold harmlessthe Corporation, the Managing Agent and the tenanta and occupants in the Bulldlng... agafnstany claims for damage to persons or property suffed 88 a result of the Alterations, whether or not caused by negligancam.. incurred by the Cormtion In c o n n d o n therewith." (Para. 9, Aneration Agreement) (emphesls Sdded). -Page 12 o 1% f [* 14] Examlntng thb provialon In context and conalderlng the language used ( hold harm1s s . tenpn~ .agalnst any claims tor damage to ... property... l n w d by the s.. .. Corporation in mnrtection therewith ), clearly it Ls for the benefit o the corporadon, f although Summers, a tenant, might be a third party beneficiary thereof, A party essertlng rights as a third-party benefidary must establish (1) the existence of a valid and blnding contract between other parth, (2) that the contract was Intended for his benefit and (3) that the banetit to him is sufficiently immediate, rather than Incidental, to indlcats the assumpVan by the contracting parties of a duty to compensate him H the benefit Is lost R e m e n t SWem v. Shsnnan& of C m i a Public E-ees Starflnn, 95 NY2d 427,435 [2000D.There 0m no facts in the comphlrrt to support the latber two requiments. Therefore,,plalntlff has not r a i d any triable issues of fact assuming the issue of Indemntfkatfon was even properly misad before the court. Turning to the claim for negligence, as pleaded In the camplaint, a party mnnot be held liable for the negligence of an independent contractor, If the party did not exercise actual or constructive control over the parlbnnance and manner In which the work was performed m a v. D.B.D. Send-. Inc., 300 A.D.2d 866 [l Dept 20031). Gallagher has satablished that Zen is an independent contractor hired purauant to a renovation contreet. He has r h established that he parsonally dM not cause the k k . There fa no evidence that Gallagher directed, controltad o supervised the work that Zan r was doing when the leak o c w m d not does the plalntlff or Zen allege such fa&. Assuming Gallagher has a duty o cam to the dhar tenants, Gallagher has, proved he f dM not breach that duty and he was not negligent. Plalntfffhas not come fomtard with any triable issues of fact that Qallagher was negligent Themfore, Gallagher s motlon -Page 13 o 19f [* 15] for summary judgment dismirrsing the complaint agalnst hlm is granted. The clalma against Galtagher am hereby sevared and dismissed. Oallaghets cross-claims against Zen are for Indemnihtion (common law and conkactual) and breach o contract. The Indemnification provision in the mnovation f contract is triggered and Zen must indemnify him "from and against all chime, damages, losses and expenses" when such claims, &c., "[anaa]out of or [rasutt]from (i) a breach of any of Contradots warranh or rapmentations set forth herein, (ii) any defautt by ContracZor in ita obllgatlons hemunder, (hi) the negligence of Contractor..." In order for Qallagherto establish a d a h for common-law indemn'rficatlon agaln8t a n , he must prove that not only was he not gullty of any negligence but also that the "pmposed Indemnitor was guilty of some negligence that contributed to the causation o the f accidenr [fdw P m o n w l D v. m., 259 A.D.2d 80,65 [la 1W0] Dept and ore Med. C t r , E l m Med. QL, 10 A.D.3d 403,405 [ ' lOapt 20041). Gatlagher has already establlshd his freedom from nqilgsnce. He has also established that Zen was presmt at the building and worklng on the p r o m when the leaks occurred. Through the testimony of Langer, Gallagher also establbhae that Zen's negllgenw, may have caused the leak because a certain beam was improprty waterproofed. This does not, however, meet Gallagher's burden of establbhing hb entitlement to summary Judgment, as a matter of law, on hls IndemnHlcatlon claims. Gallagher has not succasafully demonatratsd the absence of any material l88ues of fact ad v Naw York Univ. MUCtr., 64 NY2d 851, 853 [1985]; y J wYo&, 49 NY2d 557,582 [18801). Thls h u e awaib trial. J The court precluded Zen from presenting certain evidence at trial and a rnohion -Page 14 of 1 9 [* 16] for summary judgment ssak8 mlld squivalsnt t a brlal. Consequently, the documents o Zen mlies upon in opposition t Gallagher's motion may not be consicfared. However, a Langets testimony I svklanca In admlsslble Corm. s He testifled that t beam Zen h installed was not watertight. That statement la,hmwr, disputed by Sobus' pmident. Langer h not an expert, but a fact witnaen. i He belleves thls is the cauw of one M, but hie statement Is simply his personal opinlon. Sobus testifid and corrhmds in hls sworn statement that the building had prbexlsting problems that Zen i8 being blarnud far. Sobus contends that there was 8 pmblem with a narrow, clogged drain on the roof which may have proximately caused the leaks. Sob- also points out that another contractor, nokparty DNA, did roof on the work and although Zen had contmctd with Gallagher for that work, the scope of the work was later revised by Gallagher. In an effort to discredit Sobue, Gallagher calb hi depositbn testlmony, sworn affidavit and argumenb ralwcl I opposmon to hh motion "ahamelw,' "hunWOU8," n "unsubstantiated,"lMs more than a "fFlhsy" and "feigned."These attacks go to the veracity of Sobus' statements, his ctedlbility and undemre the disputed issues. It Is hornbook law that the court's function in deckling a motion for summary judgment b issue finding, not Laaue determination lSlllman v. T m CenWrv-Fnx F m 3 *I N.Y.2d 305 [195n).Thus, the issue o whether Sobus I belng "tnrthful" or whether f s Langefs fadual tdimony is B correct racltaatlon of how theso leaks happened I for the s trier offact t d d d s . The letter that Gallagher relles on, ostenalbly from Dynla, la not o proof in admlssibfaform (_currle v. WIIhOU8u, e 3 A.D.3d 81'8 [2"6Dept 20121). The letter is simply a typad,unaned, unerwarn document which cannot be considered. -Page 15 of i 8- [* 17] Other comments by Gallagher, that most of the tenants were angry about the shoddy work Zen was doing, merely convey certain fact8 as he believes them to bs. Having failed to prove that Zen was negligent, the Indemnity provision has not been triggered and, therefore, Gallaghat's motion for summary judgment on his IndemniAcation clalme i denied. , s Gallagher also a d s relrnbursementfor payments he made to other tenan$ and the coop to avoid litigation. The cancelled chacks only proves the payments wem made, but not the reason why. There are disputed tssues of fact about why Gallagher made tt~sse paymmh and Zen contends the payments worn wholly gratuttous. Thus, while Gallagher daims these payments wu liquidated damages that he paid on r account of Zen's negligence, Zen's ~ l i g a has~ been established. Themfore, n not summaryjudgment on hls relmburaement claim mlcst be dmisd as there are triable issues of fact. Gallagher's 1' cross clalm b for breach of contract, but can also be construd 88 a daim for a declaratoryjudgment since ha seeks a "decision" that he has additional insured status and Zen has defaulted under the terms d the renovation contract Gallagher has natablbhed that under M H O10 of the renovation contract, Zen was obllgated to procure and mainterin insurance naming him, the coop and the managing agent as additional Insureds. He has also eatabllshedthat he n o t M Zen that claims had been made agakmt him and that wrote 81 "tender lettot' to Zen, asking it to contact h insurance carrier. Although Zen Initially claims that i has no obligation to provide Gellagher wlth a t - P q a 16 Of 1% [* 18] defense because Gallagher Is not an aditbnal Insured under Rider 111 o the attsratlon agreement (sa0supra), Zen has nonethelm provided copicw o two wnsecuttve f insurance polldes idsntlfylng Gallagher as an additional insured. One policy 1 for the s period of Novemkr 15,2004 through November 15, 2005. The other is effective from November 15,2005 through November 15,2006. Gallagher argues that the dowmsnb should not be conaidered by the court because, they were not produced in dlswvery. The court agrees (saamtmv v, poi!bru&, supm). Gallagher demanded the full insurance polides but they w8 not r provided. Zen only provided Gallagher with C rHc t of Insurance. A certMcate of s t l am insurance te not, however, condustve evidena that a contract eisfgand not, In and of ,Itself,a contract to lneura ( j - l o r n ~ l m m Corn. v Adna m.& Sur. Co, 225 AD2d 443 [la lWe]). Themfore, elthough Zen prwlously provided the certificates of Dept. insurance and now provldes the policies, these productions do not defeat Gallergher's motion. Evidently Zen mistakenly b l i e v d Is Insurance carrier dld not have to tender a t defense, based upon the in8urancs provlslone In the alteration agreement. The renovation conlmct, however, is the operative document. It clearly provldes that "Contractor shall purchase and rnalntain such Insurance as will protect It rm ... f o daims...for damages to property which may arlsa aut of or mult from Contractor's opemtlons under the Contract Documents.' S c Imuranen is for the protactlon of uh Gallagher, the mop and the coop's managementcompany. Furthemore, unlike Gallagher's other crow dahs against Zen, the absence of negligence, by M b , -Page 17 of Ig- [* 19] Insufficient to establish that an addent dtd not " a b out" ofan insum's operations; rather, Yhe focus of an 'arislng out of clause I not on the precise cause of the accident s but on the general nature of the oparatlon in the WUM of which the InJuryWBS sustainad" (Hunter Rokrta_Con8t. G r o w v. Arch Ina. Co, AD.3d 404,408 [l" ,75 Dept 2010.1). fen defaulted in it contractual obligations by reststing, tf not ignoring, Gallagher's request that Zen notify its insurance provider that a dalm had been made against Gallagher arising aut of Zen'a operations. By failing t take thls nacassary step, Zen o did not fulfill its contractual obligation t make sure Gallagher, an additional lmurad o under Its insumnce policy, was provided with a defan80, or at least a response to his tender. Consequently, Gallagher's motion for summery judgment on his bmach of contract cr088 claim is granted. To the extent that Gallagher seeks a decision that be has an additional Insured status, the insurance carrier is not a party to this actlon and the court cannot make such deterrnlnatlon. Conclwlon Gallagher's motion far summary judgment I granted diBmi8Sing the plainWfs s complaint against him; those clalms are hereby severed and dlsmi88ed. Gallaghar's motion for summary judgment on his crow dairn againat Zen for brsach of contract is granted. Homier, summary judgment I denled wtth respect t his indemnMaatlon s o dalms and claim for relmburaemerrt. This case is ready t be tried slnca lhe note of Issue was filed. Plaintiff shall o - P ~ Io of 188 [* 20] 8erve a copy of thk dwl8ion and order upon the me of Trlal Support so It a n be c schaduled. Such sawice shall be no later than Tkrenty (20) Days aRer a copy of this decislon/ordar appears in SCROLL {the Suprome Court Recorda On Line Ubmry). Any relief requested but not spedficallyaddressed Is hereby denied. This ccxlstttutes the decislon and order of the couh Dated: FILED New York, New York May 23,2012 so Ordsd: -Page 10 of 1% MAY 25 2012

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