7-Eleven, Inc. v Amtech Lighting Servs.

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7-Eleven, Inc. v Amtech Lighting Servs. 2012 NY Slip Op 32387(U) August 20, 2012 Supreme Court, Suffolk County Docket Number: 08-42599 Judge: Joseph Farneti 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] INDEX No. SIIOI(T I'URM ORDI,R 08-42599 SUPREME COURT - STATE OF NEW YORK IAS. PART 37 - SUFFOLK COUNTY PRESENT: Hon. JOSEPH FARNETI Acting J ustiee Supreme Court MOTION DATE MOTION DATI, J-29-12 (#O{))) 5-10-12 (#002 & #0031 ADJ. DATE 5-31-13 Mot. Seq. # 001 - MotD #002 -XMD #OOJ-MG ---------------------------------------------------------------X 7-ELEVEN, INC. llk/a THE SOUTHLAND CORPORATION, Plaintiff, CONGDON, FLAHERTY, O'CALLAGHAN, REID, DONLON, TRAVIS & FISHLlNGER Attorney for Plaintiff 333 Earle Ovington Boulevard, Suite 502 Uniondale, New York 11553 JEFFREY SAMEL & PARTNERS Attomey for Defendant Amtech Lighting 150 Broadway, 20th Floor New York, New York 10038 - against - AMTECH LlGHTING SERVICES and MIRA LlGHTING & ELECTRICAL SERVICE, INC., Defendants. LEWIS JOHS A VALLONE AVlLES, LLP Attomey for Defendant Mira Lighting 425 Broad Hollow Road Melville, New York 11747 ----.. ---------------------------------------------------------X - Upon the fo]]ov.ing papers numbered I to 35 read on these motions and cross motion for sunm1ary judgment: Notice of Motion! Order to Show Cause and supporting papers 1 - 20: 32 - 35 , Notice of Cross Motion and supporting papers 24l.!i..; Anslvering Affidavits and SuppOliing papers 21 - 23; 27 - 29 ; Replying Aflidavits and supporting papers 30 - 31 , Other _, 1t is, ORDERED that these motions are hereby consolidated for purposes of this detennination; and]t is further ORDERED that this motion by the plaintiff for an Order, pursuant to CPLR 3212, granting summary Judgment directing the defendants to reimburse it for the defense costs incurred by the plaint] ff in the underlying action is granted as to the defendant Amteeh Lighting Services, and is otherwise denied; and it is further [* 2] 7-E1cvcn, Ine- v Amtcch l.ighting Services Index No. 08-42599 Page "2 ORDERED that this cross-motion by the defendant Mira Lighting & Electrical Service, Inc. for an Order, pursuant to CPLR 3212, granting summary judgment dismissing the complallllis denied. and in searching the record, summary judgment is granted to the plaintiff as a matter oflaw directing the defendant Mira Lighting & Electrical Service, Inc. to reimburse the plainti ff for the defense costs inculTed by the plainti ff ill the underlying action; and it is further ORDERED that this unopposed motion (incorrectly defendant Amtcch Lighting Services [or an Order, pursuant din::ctlllg the defendant Mira Lighting & Electrical Service, plaintiff of the defense costs incurred by the plaintiff in the tile underlying action, is granted. designated as a cross-motion) by the to CPLR 32 [2, granting summary judgment Inc. to re1Jl1burseIt for any paymeni to the underlying action, and for its defense costs in This is an action for contractual indemnification in whIch tbe plaintiff seeks to recover attomeys' fees paid III defendmg an underlying action, Daley v 7-Eleven, Supreme Court, Suffolk County, Index No. 98-11398. The underlying action mvolves personal injury to an electrician working at a 7-Eleven located on Knapp Street in Brooklyn. New York. The accident allegedly happened when Kevin Daley ("Daley"), an employee of the defendant Mira Lighting & Electrical Service, Inc. ("Mira"), received a severe electrical shock that caused him to lose consciousness and fall from a ladder to the floor. It is undisputed that the electrical work at the Knapp Street store was conducted pursuant to a written contract between the plaintiff and the defendant Amtech Lighting Services ("Amtech"), and that Mira actually perfonned the work pursuant to a written subcontract with Amtech. In the underlying action, the Court (Molia, J.), by Order dated October 23,2006, granted the plaintiff herein summary judgment on its cross-claims for contribution and/or indemnification against Amtech, and granted Amtech summary judgment against Mira for "complete contractual indemnification and attorneys' fees." The plaintiff commenced the instant action to recover the costs, including fees paid to its attorneys, in defending the underlying action, and it now moves for summary judgment herein. The proponent of a summary judgment motion must make a prima fade showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Ho.\pital, 68 NY2d 320, 508 NYS2d 923 [1986]; Willegrad v New York Ulliv. Med. Or., 64 NY2d 851,487 NYS2d 316 (1985]). The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible fonn sufficient to require a trial of lhe material issues of fact (Rotlt v Barreto. 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001 J; Rebecc:hi v Wltitmore, J 72 AD2d 600.568 NYS2d 423 [2d Del't 1991]; O'Neil! v Fishkill, 134 ADld 487, 521 NYS2d 272 [2d Del't 1987]). Furthermore, the parties' competing interest must be viewed "in a light most favorable to the party opposing the motion" (Marille Midland Balik, N.A. )1 Di/IO & Artie's Automatic Tra1l!;missioll Co.. 168 AD2d 610,563 NYS2d 449 [2d Oept 1990)). However, mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of [act (see, Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]; Perez v Grace Episcopal Church, 6 AD3d 596, 774 NYS2d 785 12d J)epl 2004]; Rebeeclli l' Whitmore, supra). [* 3] 7-E1cvcn. Inc. v Amtl.:ch Lighting Services Illdex No. 08-42599 Page 3 In support of Its motion, the plaintiff submits, among other things, the pleadings, the affinllation of its anomey, a copy ofilS contract with Amlcch, a copy of ilS affinllation in support of its motion for summary judgmcnt in the underlying action, and the pleadings In thc underlying action. In her affirmation 111 support of the instant malian, the allol11ey for the plainti rf affirms that the underlying action has been settled, with all proceeds paid by Mira. A review of the contract betwecn 7-Elcvcn and i\mtcch indicates that it provides, in pertinent part, as follows. 6. Amteeh's Indemnity. Amlecb shall indeml1lfy, defend and hold [7-F[evenj, its franchisees and its affi!lates, and each of[7Eleven's] and the franchisees' and affiliates' employees, directors and shareholders, harmless from and against any claim or allegation of loss, haml, damage or mjury (whether to property or person, including death) to third parties, to [7-Eleven], its franchisees or its affiliates, their employees, directors or sharcholders (including any expenses or losses arising therefrom), to the extent same are caused by any of the following: ... (b) the negligence, misconduct, violation of statute, or other fault of Amtech or its subcontractors, or either of their employees or agents in connection herewith; or (c) the presence of, or the performance of the Services by, Amtech or its subcontractors or either of their agents or employees; however, Amtech will not be liable for any loss, haml, damage or injury to the extent caused by [7-Eleven]'s negligence, The right to contractual indemnification depends upon the speci fie language of the contract between the parties (see Kielty v AJS COllstr. of L.I., Inc., 83 AD3d 1004, 922 NYS2d 467 [2d Dept 20 III; Bellefleur v New(lrk Betll [sr",! Med. Ctr., 66 AD3d 807, 888 NYS2d 81 [2d Dept 2009]; K(lder I' City o/N. Y. HOlls. Preserv. & Dev., 16 AD3d 461, 791 NYS2d 634 [2d Dept 2005]; Gillmore v DlIkelFilwr D(llIie!, 221 AD2d 938, 939, 634 NYS2d 588 [4th Dept 1995]). Thus, "[t]he pronllsc to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances" (LaRosa v lllteruap Network Servs. Corp., 83 AD3d 905, 921 NYS2d 294 [2d Dcpt 2011] quoting George v ft'Iarslwlls of MA, fIlC., (j I AD3d 925, 930.878 NYS2d 143 r2d Dcpt 2009]; Torres v LPE Lmld Dev. & Constr. 111£'., 4 AD3d 668, 863 5 NYS2d 477 [2d Dept 2008]; C{//,e!(1v TLH !40 Perry St., 47 ADJd 743, 849 NYS2d 658 [2d Dept 2008]). The Court takes judicial notice of the common practice by each party to a construction project to require indemnification from those below it. An owner will obtain indemnification from ilS general contractor, a general contractor will obtam indemnification [Tom its subcontractor, and a subcontractor will obtain indemnification from its subcontractor. Generally, the subcontractor will indemnify its general contractor and· the owner. Thus, subcontracts onen include hold hannless and llldel11nitlcation clauses whIch hold the subcontractor liable to the contractor and owner for damages suffered by thcm and 10 indcl11Jl1fY thcm from those damages. [* 4] 7-FlevCll, Inc. v Amtcch L,lghting Servlccs Index No. 08-42599 Page 4 Wherc, as here, there is a broad indemnity agreement provid1l1g lor indemnification against any claim or allegation of loss, harm, damage or Injury, ll1cluding any expenses, the indel11l1ltceIS emitled to costs, including counsel fees, Il1cuned in the defense of the underlying action even thclLlghthe prOVision docs not cxpressly mention attorneys' fees (Milalli I' Broadway Mall Properties, Juc., 2()! AD2d 370, 6S9 NYS2d 203[2d Dept 1999]; State \I Rice ,Mohawk U.S. COllst. Co., Ltd., 262 AD2d 114, (/)2 NYS2d 43 [I st Dcpt 1999]; Boyd v Bethlehem Steel Corp., 247 AD2d 864, 668 NYS2d 817 [4th Dept 1998]; Mercllllllts Mut.Jlls. Co. v Saxollllldus., 170 AD2d 654. 566 NYS2d 933 [2d Dept 19911; Lavorato l' Bethlehem Steel Corp., 91 AD2d 1184,459 NYS2d 170 [4th Dept 1983]). Here, the plamti ff has established its prima facie entitlement to summary j udgrnent against Amtech. Bovy'ever, a review of the plaintiffs submiSSIOnreveals that it does not contain any allegations directed tovvards Mira; that it does not include a copy of the contract between Amtech and Mlra; and that It j~\i1sto establish its entitlement to summary judgment against Mira. Ulopposition to the plaintiffs motion, Amteeh submits the affirmation of its attorney, and a copy a f' the Order of the Court dated October 23, 2006, which granted the plaintiff summary judgment all its cross-claims agamst Arntech. In his affirmation, counsel for Amtech contends that the subject Order resolved the lssue of its obligation to the plaintiff by omitting any mention of attorneys' fees, that the omission "could not have been inadvertent," and that the reason for the omission is the difference llllhc language between the two indemnity clauses at issue herein. A reviev.' of the record reveals that these contentions are without merit. In addition, counsel for Amtech contends that, because his client has been found entitled to reimbursement from Mira for attorneys' fees, it cannot be obligated to reImburse the plaintiff for attorneys' fees. Again, this contention is without merit. Amtech has failed to raise an issue of fact requiring a trial in this action. Accordingly, the plaintiff's motion for summary judgment and an Order directing the defendants to reimburse the defense costs incurred by the plaintiff in the subject underlying action is granted as to the defendant Amtech Lighting SerVIces, and is otherwise denied. Mira now moves for summary judgment dismissing the complaint on the grounds that the plamtill only asserted a cross-claim against it for contribution, and that there is no wntten contract bctween the p1a1l11-iff Mira. In suppo11 of its motion, Mira submits the affirmation of its attorney. In and IllS affim1ation, counsel for Mira contends that the plaintiff only made a cross-chum for contnbution agalllst Mira in the underlying action, and that, because the plallltifhvas granted summary judgmcnt agall1st Daley, the issue ISmoot. However, a review of the record reveals that the subject cross-claim was f(w "colllnbution and/or indemnification." Counsel for Mira further contends that the plaintiff cannot recover for contractual indemnification as there is no written contract between them In 0PPosltion to Mira's motion, the plamti ff submits, among other things, the contract between Amtech and Mira regarding the work at Knapp Street, which provides 111 pertinent part: (,. To the full extent permitted by law, [Mira] shall indemnify, defend and hold harmless [Am tech] and its employees and [* 5] 7-Elcv811,lnc. v Arntcch Lighting ServIces Index No, 08-42599 Pagc 5 arfiliates and (7-Elevcn] and all tenants and agents of the owncr or the facility at which the scn'lces arc performed from all claims, dcmands, losses, liability, lawsuits, hens and Judgments, including all attorneys' fees and expenses Incurred, which arise out of or result, directly or mdirectly, from or in connection with the performance orthe services, providing of materials or products or any action or in action by Subcontractor, or any of its employees, agents or subcontractors, including any caused or alleged to have been caused by the negligence or other fault of any mdellll1ltee hereunder. The plaintiff contends that it is a third-party benefiCiary under the contract between Amtech and Mira. In construction cases, the owner IS, in tact, consldered a third-party benefiCiary of the contract between the contractor and the subcontractor (Gap, Illc. v Fisher Dev., IIlC., 27 AD3d 209, 810 NYS2d 456 [1st Oept 2006J; Rotterdam Sq. v Sear-Brown Assoc., 246 AD2d 871, 668 NYS2d 278 [3d Dcpt 1998]; Finch, Pruyn & Co. v M. Wilson Control Servs. Inc., 239 AD2d 814, 658 NYS2d 496 [3d Dept 1997]). Here, the contract between Amtech and Mira establishes the plaintiffs entitlement to enforce the contractual indemnification proVIsion contained therein. However, "a party seeking contractual Il1dcmnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662, 871 NYS2d 654 [2d Dept 2009J, clting General Obligations Law § 5-322.1, see McAlli~'ter v Constr. Consultants L./., IIIC., 83 AD3d 1013, 921 NYS2d 556 [2d Dept 2011J; Reynolds v County of Westchester, 270 AD2d 473,704 NYS2d 651 [2d Dept 2000]). Mira's submission establishes that the plaintiff was free from negligence in this matter. In addition, Mira has failed to address the issue raised by the plaintiff in its motion for summary judgment that Mira was the sole negligent party in the underlying action, as the matter was settled with all proceeds pald by Mira. New York C01ll1shave held that the fallure to address arguments proffered by a 1110vantor appellant IS equIvalent to a concessIOn of the issue (see Welden v Rivera, 301 AD2d 934, 754 NYS2d 698 [3d Dept 2003]; Hajder/li v Wiljolrn 59 LLe, 24 Mise 3d 1242[A]' 2009 NY Slip Op 51849[U] [Sup Ct, Bronx County 2009]). A COlirtis empowered to search the record and grant summary judgment in favor ofa nonmovmg party (CPLR 3212 [bJ; 1133 Taconic, LLC I'LartrY11l Serv., lltc., 85 AD3d 992, 925 NYS2d 840 [2d Ocpt 2011]; Shore Dev. Partners I' Board of As.<;'essors, 2 AD3d 988, 918 NYS2d 566 [2d Dcpt 2011]: 8 Masi I' Kir Munsey Park 020 LLC, 76 AD3d 514, 906 NYS2d 88 [2d Dept 2010]) However, this power applies only\vith respect to a cause of action or issue that is the subject of the motions before the eoul1 (DulllwlJt v HUco Const. Co., 89 NY2d 425, 654 NYS2d 335 [1996J; Masi v Kir MUllsey Park 020 LLC, supra; Lee v City of Rochester, 254 AD2d 790, 677 NYS2d 848 [4th Dept ] 998]). Upon reviewing the entirety oftlle records submitted to this Court on Mira's motion for summary Judgment, It is determined that the cause of action for contractual mdcl1ll1lfication is before the Court, and that the plaintiff is entitled to summary Judgment as a matter orlaw, [* 6] 7-Elevcn, Inc. v Amtech LIghting Services lndcx No_ 08-42599 Pa5c 6 Accordingly, Mira's motion for summary judgment dismissing the complaint is denied, anu summary Judgment is grantcd to the plamtiff as a matter oflaw directing Mira to reimburse the plainti ff lor the defense costs incurred by the plaintiff in the subject underlying action. Amteeh nov,' moves for summary judgment against Mira based on Its cross-claim for contractual indc1111l1ncation.The motion is unopposed, and a review orthe record reveals that the issues have bcen resolved in the Order of the Court dated October 23, 2006, which found MIra responsible to Amtech 1'01' ··complete contractual indemnification and attorneys' fees," IIIthe underlying action. Therefore, while the COllJ1has found MIra directly responsible to the plaintiff for the defense costs Incurred by the plamti rr m the undcrlymg action, to the extent that Amtech has prcvlOllsly paid those sums to the phuntifC or may pay those sums In the future, Amtech is entitled to recover those payments from Mira. In addition, to the extent that Mira has not paid Amtech for the defense costs incurred by Amtcch in the undcrlYlllg action, it is directed to do so in accordance with the decision herein. Accordingly. Amtech's motion for summary judgment is granted. The parties are directed to submit appropriate documentation to support the amount of costs and attorneys' fees sought by the respective claimants as reimbursement from another party, along with proposed Orders, within thirty (30) days of the date of service of the instant Order upon plaintiffwith notice of entry. Dated: August 20, 2012 'ameti ustice Supreme Court FINAL DISPOSITION X NON-FINAL mSl'OSITION

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