Cibellis Contr., Inc. v Hamilton Gardens Owners, Inc.

[*1] Cibellis Contr., Inc. v Hamilton Gardens Owners, Inc. 2012 NY Slip Op 50215(U) Decided on February 14, 2012 Supreme Court, Nassau County Iannacci, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 14, 2012
Supreme Court, Nassau County

Cibellis Contracting, Inc., Plaintiff(s),

against

Hamilton Gardens Owners, Inc., Defendant(s),



6185/09



PLAINTIFF'S ATTORNEY

Susan Dentzig, Esq.

Law Offices of Steven Cohen, P.C.

One Old Country Road, Suite 420

Carle Place, New York 11514

516-294-6410

DEFENDANT'S ATTORNEY

John R. Yetman, Esq.

Walsh Markus McDougal & DeBellis, LLP

229 Seventh Street, Suite 200

Garden City, New York 11530

516-408-9000

Angela G. Iannacci, J.

The motion by the plaintiff, Cibellis Contracting, Inc. (Cibellis) for summary judgment on liability and dismissing the counterclaims, and the cross motion by the defendant, Hamilton Gardens Owners, Inc. (Hamilton), for summary judgment in its counterclaims, are determined as follows:

On February 13, 2008, the parties entered into a contract in which Cibellis was to perform certain excavation and construction work on the premises owned by Hamilton. The contract provided for over $110,000.00 in work and included the following provision: "Not responsible for anything underground such as electric, cable, phone ect [sic]." While Cibellis was performing excavation work, it struck an underground electrical wire, severed it and caused a complete loss of power to Hamilton's building [*2]and property. Hamilton alleges that it had to incur costs of $37,657.55 to repair the electrical damage caused by Cibellis. Cibellis asserts that it is owed $36,881.67 as the amount due on the contract and an additional $8,421.11 for extra excavation work it performed so an electrician could repair the electrical supply to Hamilton's property. It is undisputed that Cibellis finished the work required under the contract.

On its motion, Cibellis contends that the clear provision in the contract quoted above absolves it of liability for the electrical damage. General Obligations Law § 5-322.1(1) states as follows: A covenant, promise, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances including moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable; provided that this section shall not affect the validity of any insurance contract, workers' compensation agreement or other agreement issued by an admitted insurer. This subdivision shall not preclude a promisee requiring indemnification for damages arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of a party other than the promisee, whether or not the promisor is partially negligent.

The law is settled that a party seeking contractual indemnification must prove itself free of negligence in order to enforce the indemnity clause (see Fernandez v Abalene Oil Co., Inc., ___ AD3d ___ [2d Dept. Jan. 31, 2012]; Cava Const. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660 [2d Dept. 2009]). Here, there is no reasonable argument that Cibellis was free from negligence. In fact, it is undisputed that Cibellis failed to comply with General Business Law § 764, which requires excavators to verify the precise locations of underground facilities by contacting the "one-call" notification system. The violation of the statute in and of itself is at least some evidence of negligence (see Level 3 Communications, LLC v Petrillo Contracting, Inc., 73 AD3d 865 [2d Dept. 2010]).

Cibellis, nevertheless, asserts that General Obligations Law § 5-322.1(1) does not apply here because it was excavating a concrete driveway when it severed the electrical wires and therefore was not involved in construction of a building as required by the statute. A plain reading of the statute dictates that this contention is meritless. General Obligations Law § 5-322.1(1) clearly applies to contracts for "construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances including moving, demolition and excavating connected therewith [emphasis added]." Here, even assuming that Cibellis is correct in its assertion, the contract as a whole was obviously for the construction of appurtenances on Hamilton's [*3]property. That the incident happened while excavating a driveway does alter the nature of the contract between the parties. Cibellis's reliance upon Appliance Assocs. Inc. v Dyce-Lymen Sprinkler Co., Inc. (123 AD2d 512 [2d Dept. 1986]), is misplaced. In Appliance, the underlying contract was for alarm services which is clearly not construction, alteration, repair or maintenance of a building. Therefore, the indemnity clause in the contract is unenforceable.

Accordingly, Cibellis's motion seeking summary judgment predicated upon the contractual indemnification provision is denied.

Hamilton's cross motion seeking summary judgment on its counterclaims for negligence and breach of contract is also denied. It is undisputed that Cibellis completed the work under the contract and Hamilton has not submitted sufficient evidence to demonstrate its entitlement to judgment as a matter of law on either counterclaim (see Zuckerman v City of New York, 49 NY2d 557 [1980]). There is no support for the proposition that the violation of General Business Law § 764 amounts to negligence per se.

This constitutes the decision and order of the court.

Dated: February 14, 2012Angela G. Iannacci, J.S.C.