Vamvkaris v City of New York

[*1] Vamvkaris v City of New York 2008 NY Slip Op 52555(U) [21 Misc 3d 1148(A)] Decided on December 23, 2008 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2008
Supreme Court, Kings County

Maria L. Vamvkaris and Andrew Vamvakaris, Plaintiffs,

against

The City of New York, THE NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, JOSEPH L. BALKAN INC., TIME WARNER CABLE OF NYC, V.C. VITANZIA & SONS, INC., AND VERIZON COMMUNICATIONS INC., Defendants.



9686/04



Lester Schwab Katz & Dwyer, LLP

120 Broadway

New York, NY 10271-0071

Law Offices of Edward Garfinkel

110 William Street

New York, NY 10038-3901

Cullen and Dykman, LLP

177 Montague Street

Brooklyn, NY 11201-3602

Marks O'Neil, O'Brien & Courtney, P.C.

530 Saw Mill River Road

Elmsford, NY 10523

Robert J. Miller, J.

Defendant Time Warner Cable of New York City, a division of Time Warner Entertainment Company, L.P., sued herein as Time Warner Cable of New York City (Time Warner), moves for an order: (1) pursuant to CPLR 3212, granting summary judgment dismissing all cross claims and counterclaims against it, with prejudice; (2) granting summary judgment on its contractual and common law indemnification claims for attorneys' fees against third-party defendants Hylan Datacom & Electrical Inc. (Hylan), individually and as successor in interest to Trinity Communications Corp. (Trinity), individually; and (3) granting summary judgment against third-party defendant New Hampshire Insurance Company (New Hampshire) declaring that Time Warner is covered for plaintiffs' action as an additional insured under the insurance policy issued by New Hampshire to Trinity; that New Hampshire is required to defend, indemnify and hold it harmless in the action brought against it by plaintiffs; and that New Hampshire must reimburse Time Warner for the defense attorneys' fees, costs and disbursements incurred in defending the instant action. Second third-party defendant S. DiFazio and Sons Construction, Inc. (DiFazio), moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the second third-party complaint of Verizon New York, Inc. (Verizon), and all cross claims and counterclaims against it. New Hampshire cross-[*2]moves for an order: (1) pursuant to CPLR 3212, granting summary judgment in its favor; (2) pursuant to CPLR 3001, declaring that it has no duty to defend or indemnify Time Warner in the underlying Vamvakaris personal injury action; or, (3) in the alternative, if the court finds that New Hampshire does owe a duty to defend Time Warner, declaring (I) that the duty to defend is co-primary with the insurance issued to Time Warner by St. Paul Travelers (Travelers), and (2) that any determination as to a prospective obligation to indemnify Time Warner is premature pending determination of the facts in the underlying personal injury action.

Facts and Procedural Background

On March 11, 2004, plaintiffs Maria L. Vamvakaris (plaintiff) and Andrew Vamvakaris (Vamvakaris) commenced this action against the City of New York (the City), the New York City Department of Environmental Protection (Environmental Protection), Joseph L. Balkan Inc. (Balkan), Time Warner and XYZ Corp. seeking to recover compensatory and derivative damages for personal injuries sustained by plaintiff on January 30, 2003. In her complaint, plaintiff alleges that on that day, she was caused to fall in the roadway of Clymer Street, between Juliana Place and Wythe Avenue. She further avers that the City issued street opening permits in the area where she fell to Environmental Protection on September 3, 2002, to Balkan on November 22, 2002 and to Time Warner on January 31, 2003. On April 4, 2005, plaintiffs served a supplemental summons adding V.C. Vitanzia & Sons, Inc. (Vitanzia), and Verizon as defendants. In their amended complaint, plaintiffs aver that the City issued street opening permits to Vitanzia on January 31, 2002, April 1, 2002, June 27, 2002, September 4, 2002 and November 6, 2002 and to Verizon sometime prior to January 30, 2003.

On January 26, 2005, Time Warner commenced a third-party action against Hylan, as successor in interest to Trinity (hereinafter Hylan and Trinity shall be collectively referred to as Trinity), and New Hampshire. Therein, Time Warner seeks to recover damages against Trinity predicated upon causes of action sounding in common law indemnification, contractual indemnification and breach of contract. More specifically, Time Warner alleges that on December 18, 1996, it entered into a "Cable Television System Construction Agreement" with Trinity (the Trinity Contract) to perform certain work in the area where plaintiff was injured. As is relevant herein, Time Warner alleges that pursuant to that contract, Trinity assumed the obligation to defend, indemnify and hold it harmless for any damages or claims arising out of the work performed and it agreed to procure comprehensive general liability insurance to protect Time Warner. As against New Hampshire, Time Warner seeks a judgment declaring that the insurer is required to afford it primary insurance coverage for the defense of the underlying personal injury action, along with indemnification for any judgment rendered, arguing that pursuant to the Trinity Contract, New Hampshire is obligated to provide it with [*3]additional insured coverage under the commercial general liability policy issued to Trinity, which policy was allegedly so endorsed.

On September 7, 2005, Verizon commenced a second third-party action against DiFazio in which it sought contractual indemnity and interposed causes of action alleging that DiFazio breached its contract with Verizon in that it failed to perform the subject work in a safe manner and it failed to purchase insurance for the protection of Verizon.

In their respective answers, the City and Environmental Protection cross-claimed against Balkan, Time Warner, Vitanzia and Verizon. Time Warner cross-claimed against the City, Environmental Protection, Balkan, Vitanzia and Verizon. Balkan cross claimed against the City, Environmental Protection and Time Warner. Trinity cross-claimed against the City, Environmental Protection, Balkan, Time Warner and New Hampshire. Vitanzia cross-claimed against the City, Environmental Protection, Balkan, Time Warner and Verizon. Verizon cross-claimed against the City, Environmental Protection, Balkan, Time Warner and Vitanzia. DiFazio cross-claimed at the City, Environmental Protection, Balkan, Time Warner, Vitanzia, Verizon, Hylan, Trinity and New Hampshire.

On April 22, 2005, plaintiffs discontinued their action against Time Warner. By order dated November 17, 2006, Vitanzia's motion for summary judgment was granted and it is no longer a party to this action. By order dated December 14, 2007, Balkan's motion for summary judgment was granted and all claims, cross claims and counterclaims were dismissed as against it.

Depositions

Plaintiff

At her deposition conducted on January 23, 2006, plaintiff testified that at about 7:30 p.m. on January 3, 2003, she tripped and fell when she was walking from her home on Wilson Street to her daughter's home on Wythe Avenue. More specifically, plaintiff testified that when she was crossing the roadway in front of 80 Clymer Street, between Wythe Avenue and Juliana Place, there were pebbles and rocks on a manhole cover when she stepped onto it with her left foot and there was a "crater" three and one-half inches deep around it.

At her deposition conducted on May 1, 2007, plaintiff identified the manhole cover on which she tripped by marking photographs shown to her.

Andrew Vamvakaris

At his deposition conducted on January 23, 2006, Vamvakaris testified that he did not witness the accident, since he was at home at the time. Approximately three or four days later, plaintiff showed him where she fell; he returned the next day and took photographs of the site. Vamvakaris identified the pothole in which his wife fell on the photos that he took. He drove his car on Clymer Street "all the time," two or three times a month; he had not noticed any potholes or manholes. DOT opened and repaired Clymer Street from Juliana Place to Bedford Avenue about five years ago. In July 2005, he saw [*4]DOT repairing some potholes in the street down to Wythe Avenue; he had a conversation with some people from DOT at that time and they told him that an underground water pipe was leaking and seeping into the basement of the Taylor Wythe Projects. After those repairs were made, the crater around the manhole where his wife fell was repaired.

Patricia Malloy

At her deposition conducted on July 19, 2007, Malloy testified that she was employed as a quality control manager at Time Warner; her duties included issuing work orders. In preparation for her deposition, she reviewed permits for work that Time Warner did on Clymer Street, on both the sidewalks and in the roadway, between Juliana Place and Wythe Avenue. She further testified that Time Warner hired Trinity to install a pedestal on the sidewalk in front of 111 Clymer Street; a pedestal is an above ground box that houses cable. Malloy testified that she found no records showing any work performed on the roadway of Clymer Street for the two year period preceding plaintiff's accident.

Anton Shahsovar

At his deposition conducted on April 9, 2008, Shahsovar testified that he was employed by Verizon as an engineer; he designs job prints. Prior to January 30, 2003, he prepared prints that placed conduit and cable along Clymer Street, between Juliana Place and Wyeth Avenue; the job entailed placing conduit between manholes and pulling it through. More specifically, Shahsovar prepared the print for the job that placed conduit between manhole 115 and manhole 117, between manhole 117 and 118 and between manhole 118 and 141 on Clymer Street. Shahsovar then identified manholes 117 and 118 as being located between Wyeth Avenue and Juliana Place; manhole 117 was paved over and manhole 118 was owned by Verizon.

John DiFazio [FN1]

At his deposition conducted on May 12, 2008, John DiFazio testified that he was employed as the president of DiFazio Industries, a heavy highway construction company. DiFazio was hired by Verizon to build conduit on Clymer Street, from Kent Street to Bedford Avenue. He further testified that manholes 117 and 118 were located on Clymer Street, between Juliana Place and Wythe Avenue. In the course of the work that it did for Verizon, DiFazio was instructed to "uncover" manhole 117, since it was paved over; no other manhole in the area was paved over. Since manhole 118 was not paved over, DiFazio removed the cover and then replaced it; when the cover was replaced, it was flush with the metal casting surrounding it. John DiFazio identified manhole 118 as the manhole cover on which plaintiff tripped and he identified it as being owned by Verizon by its yellow paving sticker. DiFazio did its own backfilling when the work was completed. The work that DiFazio performed in that area for Verizon was completed on [*5]April 10, 2001. John DiFazio personally inspected the work on behalf of DiFazio and found it to be satisfactory; Verizon inspected the work on May 1, 2001.

Time Warner's Motion/

New Hampshire's Cross Motion

Time Warner's Contentions

In support of its motion, Time Warner argues that it cannot be held liable for plaintiff's injuries because it did not create or have any notice of the alleged dangerous condition that caused plaintiff to fall. In so arguing, Time Warner relies upon the deposition testimony to establish that plaintiff fell in the roadway in front of 80 Clymer Street. Time Warner then alleges that the deposition testimony of Malloy establishes that the only work performed on behalf of Time Warner in the area where plaintiff fell was done on the sidewalk in front of 111 Clymer Street and involved the installation of a pedestal. Time Warner also avers that the deposition testimony further establishes that no work was performed on behalf of Time Warner in the roadway of Clymer Street, that Time Warner did not own any manholes in the area and that it would not and did not request that any work on the manhole in front of 80 Clymer Street be performed. Malloy's testimony also establishes that the work performed in front of 111 Clymer Street was done by Trinity.

Time Warner further argues that it cannot be held liable for the alleged negligence, if any, of Trinity, because Trinity was an independent contractor who was solely responsible for controlling its own work (Trinity Contract, Art I and III). Hence, Time Warner argues that it is entitled to common law indemnification from Trinity because Trinity controlled the work of its own employees. Time Warner also relies upon the language in the Trinity Contract to argue that it is entitled to contractual indemnification premised upon the clause in the contract which states that:

"Contractor shall indemnify, defend and hold harmless [Time Warner] and its directors, officers, agents, employees, representatives, partners, parents, affiliates and each of them against and from: claims, demands, damages, costs and expenses (including, without limitation, reasonable attorneys' fees, court and other proceeding costs and all other costs incurred to enforce the indemnity granted in this Section), losses, liabilities, causes of action at law or in equity (including, without limitation, injury to or death of any person(s) and damage to or destruction of any property) threatened, brought or instituted, arising out of or in any way connected with the acts or omissions of Contractor, its employees, agents, representatives or consultants in the performance of the work or rising out of or in any way connected with a breach by Contractor of any covenant contained in this agreement, except to the extent attributable to the negligence of [Time Warner] or [Time Warner's] agents, representatives or employees."

(Contract, Article VIII[A][1]). [*6]

With regard to New Hampshire, Time Warner asserts that the insurer is obligated to defend it in this action, including reimbursing it for past defense costs, and indemnify it and provide it with exclusive primary insurance coverage. In this regard, the contract with Trinity provides that:

"Contractor shall file with [Time Warner], prior to the commencement of the Work, certificates of insurance in triplicate acceptable to [Time Warner] pertaining to all of the above insurance. All such certificates shall . . .

"provide that the coverage provided to Contractor shall continue in full force and effect under the policy by the Named insured ([Time Warner] shall be named as an additional insured under such policies)."

(Trinity Contract, Art VIII [B][2]). Time Warner also relies upon the language in the policy that New Hampshire issued to Trinity which provides that:

"In consideration of the premium charged, it is agreed that this Policy covers all Additional Insured Interests where required by a written contract.

"This, however, does not imply that the Company waives its rights or subrogation.

"All other terms and conditions remain the same."

Trinity's Contentions

In opposition to Time Warner's motion, Trinity argues that plaintiff has voluntarily discontinued the action against Time Warner because the evidence adduced herein clearly indicates that neither Time Warner nor Trinity performed any work at the location where plaintiff fell. Notably, the cover letter that forwarded plaintiffs' stipulation of discontinuance to Time Warner stated that "[e]xaminations before trial in this matter have indicated that Time Warner Cable has never performed work in the vicinity of where plaintiff's incident occurred and therefore had no liability for the occurrence of her incident."

Trinity further contends that the indemnification clause contained in its contract with Time Warner is not a broad clause, but instead obligates Trinity to indemnify, defend and hold harmless Time Warner only when liability arises out of Trinity's acts or omissions. Hence, since the duty to defend is no broader than the duty to indemnify, and since plaintiff's injuries did not arise from Trinity's negligence, the court must deny Time Warner's motion for summary judgment.

New Hampshire's Contentions

In opposition to Time Warner's motion and in support of its cross motion, New Hampshire argues that the contractual provision in the Trinity Contract that requires that Time Warner be named as an additional insured means that Trinity is insured for liability [*7]that arises out of activities covered by the agreement. More specifically, New Hampshire argues that Time Warner erroneously relies upon the above quoted indemnification clause to conclude that "assuming Time Warner Cable is held responsible for plaintiff's alleged accident, her accident arose out of Trinity's work for Time Warner Cable" to contend that it need not establish a causal relationship or nexus between the work performed by Trinity under the contract and the alleged claim in order to trigger additional insured coverage for Time Warner. New Hampshire argues, however, that since the evidence establishes that other contractors performed work at the location where plaintiff fell and the accident had nothing to do with Trinity's work, it does not owe Time Warner a duty to defend or to indemnify. In so arguing, New Hampshire alleges that the deposition of Time Warner establishes that it hired Trinity to perform work on the sidewalk in front of 111 Clymer Street, and plaintiff's deposition testimony establishes that she was injured when she fell in the roadway in front of 80 Clymer Street. New Hampshire thus concludes that from this it follows that Time Warner is not entitled to additional insured coverage under the New Hampshire policy issued to Trinity.

Further, New Hampshire alleges that Travelers issued a commercial general liability policy to Time Warner which was in effect on the date of plaintiff's accident. New Hampshire argues that in accordance with the language contained in that policy, this court must address Time Warner's claim for coverage with full disclosure of Time Warner's primary coverage with Travelers.

Time Warner's Reply to New Hampshire's Cross Motion

In opposition to New Hampshire's cross motion, Time Warner argues that the instant action "arose out of" the work that Trinity performed for it, so that the language in the New Hampshire policy of insurance issued to Trinity is broad enough to require the insurer to provide it with additional insured coverage and to defend it in this action.

Time Warner further argues that New Hampshire's contention that its policy from Travelers provides co-insurance is without merit, since the Trinity Contract specifically provides that Time Warner's additional insured coverage under the New Hampshire policy would be "primary and not contributing to or in excess of any insurance which may be maintained by" Time Warner.

New Hampshire's Reply

In its reply affirmation, New Hampshire again argues that the Travelers policy issued to Time Warner provides co-insurance with the New Hampshire policy issued to Trinity. In this regard, New Hampshire contends that since the two insurance policies contain identical "other insurance" clauses, the scope of coverage is determined by the language of the policies, and not by the terms of the contract between Trinity and Time Warner, to which New Hampshire is not a party.

Discussion

Herein, the deposition testimony establishes that plaintiff tripped and fell on manhole 118, located in the roadway in front of 80 Clymer Street; that Time Warner did [*8]not perform any work on this manhole; and that the only work that Time Warner performed in the area, through its contract with Trinity, was the installation of a pedestal on the sidewalk in front of 111 Clymer Street. Further, plaintiffs have discontinued their action as against Time Warner for this reason. Moreover, none of the co-defendants proffer any evidence to raise an issue of fact as to whether Time Warner performed any work on the manhole on which plaintiff tripped. From this it follows that Time Warner is entitled to summary judgment dismissing all cross claims and counterclaims against it, with prejudice.

The court finds, however, that Time Warner is not entitled to contractual indemnification against Trinity. In this regard, it is well established that "[a] party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances'" (Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987]), quoting Margolin v New York Life Ins. Co., 32 NY2d 149, 153 [1973]). The indemnification clause contained in the Trinity Contract provides that Trinity's liability is limited to claims "arising out of or in any way connected with the acts or omissions of" Trinity. Accordingly, since the deposition testimony establishes that plaintiff did not fall in an area where Trinity did any work, her accident does not arise out of any act or omission on Trinity's part. Hence, Trinity is not obligated to indemnify Time Warner under the Trinity Contract (see generally Rosen v New York City Tr. Auth., 295 AD2d 126, 126-127 [2002] [site owner was not entitled to contractual indemnity from the contractor, since the parties' contract limited liability to "such injuries" as occur "on account of, or in connection with, the performance of the Work" and it was found that the accident was not in any manner caused by the contractor's "work"]; cf. Drzewinski, 70 NY2d at 776 [full contractual indemnification was proper where the contract provided that the contractor would "indemnify and save harmless the Owner . . . and their respective employees and agents from and against all losses and all claims, demands, payments, suits, actions, recoveries, and judgments of every nature and description brought or recovered against them by reason of any omission or act of the contractor"] [emphasis added]; DiPerna v American Broadcasting Cos., 200 AD2d 267, 269 [1994] [contractor was found liable to indemnify site owner, notwithstanding finding of no liability in contractor's favor in the main action, under contract calling for indemnification of liabilities "claimed" to arise out of or be connected with any accidents "alleged" to have happened in or about the place where the contractor was performing work]).

For the same reasons, Time Warner's request for an order granting it summary judgment on its common law indemnification claim against Trinity must fail. "A subcontractor may be obligated to indemnify under the common law upon proof that its actual negligence contributed to an accident, or, in the absence of any negligence, where it had the authority to direct, supervise, and control the work giving rise to the injury" [*9](Hernandez v Two E. End Ave. Apt., 303 AD2d 556, 557 [2003], citing Hernandez v Two E. End Ave. Apt., 271 AD2d 570, 571 [2000]; Walker v Trustees of Univ. of Pa., 262 AD2d 175, 176 [1999]; Rodriguez v Metropolitan Life Ins. Co., 234 AD2d 156 [1996]; Terranova v City of New York, 197 AD2d 402 [1993]). Hence, having held that plaintiff's injury did not result from any work performed by or supervised by Trinity, Time Warner is not entitled to common law indemnification from it (see e.g. Ramatowski v City of New York, 284 AD2d 318 [2001] [the second third-party defendant established its prima facie entitlement to judgment as a matter of law dismissing the second third-party complaint and all cross claims insofar as asserted against it based upon common law indemnification since there was no evidence that it was negligent or otherwise at fault for the injuries sustained by the plaintiff]).

Further, since Trinity's duty to defend is no broader than its duty to indemnify, that branch of Time Warner's motion seeking to require Trinity to defend it in the action must also be denied (see e.g. Brasch v Yonkers Constr. Co., 306 AD2d 508, 511 [2003]; Rodriguez v Savoy Boro Park Assocs. Ltd. Partnership, 304 AD2d 738, 739 [2003], Bermudez v New York City Hous. Auth., 199 AD2d 356, 358 [1993]; Cannavale v County of Westchester, 158 AD2d 645 [1990]).

Turning to New Hampshire's duty to indemnify and defend, the court first notes that it is well established that "[a]s with any contract, unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court" (White v Continental Cas. Co., 9 NY3d 264, 267 [2007], citing Teichman v Community Hosp., 87 NY2d 514, 520 [1996]; Bailey v Fish & Neave, 8 NY3d 523, 528 [2007]; Chimart Assoc. v Paul, 66 NY2d 570, 572-573 [1986]; accord Vigilant Ins. Co. v Bear Stearns Cos., 10 NY3d 170, 177 [2008]). Hence, the interpretation of unambiguous provisions of an insurance policy is an issue to be decided by the court (see e.g. Hartford Accident & Indem. Co. v Wesolowski, 33 NY2d 169, 172 [1973]).

As is also relevant herein, it is well settled that an:

" [a]dditional insured is a recognized term in insurance contracts, . . . [and that] the well-understood meaning of the term is an entity enjoying the same protection as the named insured' (Pecker Iron Works of NY v Traveler's Ins. Co., 99 NY2d 391, 393 [2003] [internal quotation marks and citations omitted]). . . . Thus, the standard for determining whether an additional named insured is entitled to a defense is the same standard that is used to determine if a named insured is entitled to a defense."

(BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708 [2007]; see also Worth Constr. Co. v Admiral Ins. Co., 10 NY3d 411 [2008]; Wong v New York Times Co., 297 AD2d 544, 547 [2002]).

Further, "[a]n insurer's duty to defend arises whenever the allegations within the four corners of the underlying complaint potentially give rise to a covered claim'" (Worth [*10]Constr. Co, 10 NY3d at 415, quoting Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169 [1997]). It must also be recognized that:

"[I]t is well settled that an insurer's duty to defend [its insured] is "exceedingly broad" and an insurer will be called upon to provide a defense whenever the allegations of the complaint "suggest . . . a reasonable possibility of coverage"'" (Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131 [2006] [citation omitted]). The duty to defend [an] insured[] . . . is derived from the allegations of the complaint and the terms of the policy. If [a] complaint contains any facts or allegations which bring the claim even potentially within the protection purchased, the insurer is obligated to defend' (Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66, 73 [1989])."

(BP A.C. Corp., 8 NY3d at 714).

As is also relevant herein, however, it has been held that "[a] contractual provision which requires that a party be named as an additional insured in a liability policy has been interpreted to mean that the additional insured is insured for all liability arising out of the activities covered by the agreement" (Ceron v Rector, Church Wardens & Vestry Members of Trinity Church, 224 AD2d 475, 476 [1996], citing Murray v Curtis Co., 189 AD2d 980 [1993]; Clapper v County of Albany, 188 AD2d 774 [1992]; Roblee v Corning Community Coll., 134 AD2d 803 [1987]; see generally Tishman Interiors v Fireman's Fund Ins. Co., 236 AD2d 385, 386 [1997] [the subject policy provided coverage to Tishman for liability "arising out of" work done for plaintiff at the job site]). Hence, " an insurer can be relieved of its duty to defend if it establishes as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision'" (Francis v D & W Saratoga, 49 AD3d 597, 598 [2008], quoting Allstate Ins. Co. v Zuk, 78 NY2d 41, 45 [1991]). Accordingly, it has been held that the court erred in granting that branch of a motion which sought to direct an insurer to pay the defense costs incurred in the main action pursuant to the terms of its liability insurance policy, since those claims had been dismissed when it was determined that the injuries did not result from a covered accident, so that the insurer could properly deny coverage pursuant to the terms of its liability insurance policy (Wronka v GEM Community Mgt., 49 AD3d 869 [2008]).

From this it follows that since it has been held that plaintiff's injuries were not caused by any work done by Trinity, and plaintiffs withdrew their action against Time Warner because the evidence established that Trinity did not perform any work in the area where plaintiff was injured, New Hampshire has established that there in no possible legal or factual basis upon which it could be found to be obligated to indemnify its insured, and hence Time Warner, as its additional insured. Accordingly, that branch of Time Warner's motion seeking summary judgment against New Hampshire is denied in its entirety and New Hampshire's cross motion seeking an order granting it summary judgment against Time Warner is granted. The court thus finds that New Hampshire has [*11]no duty to defend or indemnify Time Warner in the underlying personal injury action and therefore does not reach that branch of New Hampshire's cross motion in which it seeks an order finding that Travelers must provide co-insurance to Time Warner.

DiFazio's Motion

DiFazio's Contentions

In support of its motion, DiFazio relies upon the deposition testimony of plaintiff, Shahsovar and John DiFazio. More specifically, DiFazio argues that during their respective depositions, plaintiff marked the manhole on which she fell on photographs shown to her. Shahsovar and John DiFazio testified that there were two manholes on Clymer Street between Juliana Place and Wythe Avenue which were numbered 117 and 118. The deposition testimony of both plaintiff and John DiFazio identify the manhole on which plaintiff tripped as manhole 118. The depositions of John DiFazio and Shahsovar also establish that DiFazio opened the street to perform work between manholes 117 and 118; it performed work on manhole 117, which it uncovered because it was paved over. Because manhole 118 was not paved over, DiFazio was not instructed to uncover it. The extent of DiFazio's dealings with manhole 118 was to remove the manhole cover for access to the manhole and then to replace the cover. It opened the street and extended the opening to the point at which the underground portion of the manhole extended, which was five feet away from manhole 118. Moreover, DiFazio completed its work in the vicinity of manhole 118 on April 10, 2001, 21 months before plaintiff's accident. DiFazio further avers that it left manhole 118 in a safe manner, i.e., sitting flush with the casting.

DiFazio thus concludes that no evidence has been introduced that would establish that its activity in this area created the condition that led to plaintiff's accident. Hence, DiFazio argues that it is entitled to summary judgment because it did not perform any work on manhole 118 or to the "crater" surrounding it and it did not own or control manhole 118. DiFazio further avers that Verizon's inspection of the work performed further supports it assertion that the work performed met Verizon's standards, as is indicated in its inspection report dated May 1, 2001, so that Verizon should now be precluded from claiming that DiFazio left the work site in an unsafe manner.

DiFazio further argues that the indemnification clause relied upon by Verizon in seeking indemnification from DiFazio is inapplicable, since the clause conditions indemnification upon "any claims resulting from [DiFazio's] actual or alleged negligence or wrongful actions." DiFazio thus contends that since the indemnification clause limits DiFazio's obligation to indemnify and hold Verizon harmless to claims resulting from DiFazio's actual or alleged negligence or wrongful actions, and the evidence adduced herein establishes that it did not work on the subject manhole, nor did it own or control it, the record is devoid of evidence to establish that DiFazio caused or contributed to the condition that allegedly caused plaintiff to fall. Hence, DiFazio contends that it cannot be [*12]held liable to Verizon pursuant to the indemnification clause. Finally, DiFazio contends that Verizon is not entitled to common law indemnification for the same reason.

Verizon's Contentions

In opposition to the motion, Verizon argues that it is entitled to contractual and common law indemnification from DiFazio in reliance upon that provision of its contract with DiFazio, which provides that DiFazio agreed to:

"indemnify, hold harmless and defend VERIZON (including its parent, subsidiary and affiliate companies), its successors, assigns, employees, and officers harmless against any losses, damages, liabilities, claims or demands (including all costs, expenses and reasonable attorneys' fees on account thereof in connection with any investigation or preparation related thereto or the enforcement of the indemnification provisions of this Agreement) (collectively, the "Indemnified Amounts") that may be made as a result of the Service Providers [sic] actual or alleged acts or omissions including, but not limited to, claims made:

"by anyone for injuries (including death) to persons or damage to property (including theft) or other cause of action resulting from the Service Providers [sic] acts or omissions or those of persons furnished by the Service Providers while performing work for VERIZON pursuant to the Agreement or in connection with materials furnished by the Service Provider pursuant to this Agreement.

"in connection with the services contemplated by this Agreement or resulting directly or indirectly from the performance of the services under this Agreement whether caused by the negligence of the Service Provider or anyone action on behalf of the Service Provider."

(Agreement, p 11-12).

Verizon accordingly concludes that in accordance with this language, it is not necessary that it prove that the accident in question actually arose out of DiFazio's work in order for Verizon to be indemnified, since the contract provides that DiFazio must indemnify Verizon against claims or demands that may be made as a result of DiFazio's "actual or alleged acts or omissions."

The City's Contentions

In opposition to DiFazio's motion, the City adopts and incorporates all of the procedural history set forth in DiFazio's moving papers and in Verizon's opposition papers to argue that the motion must be denied because questions of fact exist as to whether or not DiFazio caused or created the allegedly defective condition that plaintiff believes caused her to fall. The City takes no position on the contractual issues raised between DiFazio and Verizon. [*13]

More specifically, the City argues that since there is conflicting evidence with regard to whether DiFazio is responsible for repairing manhole 118, where plaintiff fell, DiFazio's motion for summary judgment must be denied. The City further contends that the permit granted to Verizon allowed it to open the roadway of Clymer Street between Juliana Place and Wythe Avenue for a maximum length of 410 feet, and that it performed work by removing and replacing manhole 118.

DiFazio's Reply to the City

In reply to the City's argument, DiFazio alleges that there is no conflicting evidence presented with regard to who repaired the subject manhole cover, since the evidence fails to establish that Verizon performed any work in the area where plaintiff fell. To the contrary, Verizon opposed DiFazio's motion for summary judgment on the ground of what it alleges is a "broad obligation to indemnify," regardless of "groundless, false or fraudulent" claims. DiFazio further avers that the fact that it removed the cover of manhole 118 two years before the subject accident does not create an issue of fact, since plaintiff's testimony clearly states that the source of her accident was stones on top of the manhole cover.

DiFazio's Reply to Verizon

In the alternative, should the court determine that the agreement is enforceable, DiFazio argues that the above quoted language of the indemnification clause compels the conclusion that it is only obligated to indemnify Verizon if it is found to be negligent. DiFazio accordingly concludes that since the evidence establishes that it did not perform any work in the area where plaintiff was injured, plaintiff's claims cannot result from any acts or omissions on its part.

Discussion

As was the case with Time Warner, the evidence presented herein establishes that DiFazio did not perform any work on the manhole where plaintiff fell, although it opened the street in the area. Further, since Verizon inspected the work on May 1, 2001 and had no complaints, Verizon cannot now argue that DiFazio performed the work negligently or that the work was not performed in a safe manner. In this regard, it must also be noted that DiFazio completed its work in the area in April 2001, more than 21 months before plaintiff's accident. Further, none of the co-defendants, including the City, proffer any evidence to raise an issue of fact as to whether DiFazio performed any work on the manhole on which plaintiff tripped.

From this it follows that DiFazio is entitled to summary judgment dismissing all cross claims and counterclaims against it, except to the extent hereinafter discussed with regard to Verizon's claim for contractual indemnity. For the same reasons, and as was discussed more fully in addressing Time Warner's motion, since there is no showing that plaintiff's accident was caused by work performed by DiFazio, DiFazio's request for an order granting it summary judgment on the common law indemnification claim asserted against it by Verizon is also granted. Finally, for these reasons, and because Verizon [*14]inspected DiFazio's work on May 1, 2001 and did not raise any objections, DiFazio is also granted summary judgment dismissing Verizon's claim against it as it is predicated upon the allegation that DiFazio performed the work in an unsafe manner.

The court reaches a different conclusion, however, with regard to whether Verizon is entitled to contractual indemnification from DiFazio. In this regard, the court notes that DiFazio's indemnification clause is significantly different from the clause contained in the Trinity Contract in that DiFazio's agreement provides that it will indemnify Verizon for any claims arising out of its "actual or alleged acts or omissions" (emphasis added). Herein:

"[t]he indemnification provision at issue clearly entitles [Verizon] to indemnification for the costs it incurred in defense of the main action. Nothing in its broad language conditions [Verizon's] right to indemnification on a finding of fault by [DiFazio] or a third person. Indeed, in addressing a loss . . . which arise[s] or [is] claimed to arise out of . . . any accident or occurrence which . . . is alleged to have happened,' the agreement expressly contemplates the absence of fault."

(DiPerna, 200 AD2d at 269-270; cf. Gomez v Sharon Baptist Bd. of Directors, 55 AD3d 446 [2008] [the court correctly denied defendant summary judgment against third-party defendant based on its indemnification claim where the contract between the two parties specifically provided that the third-party defendant was obligated to indemnify defendant for losses only to the extent that they were caused in whole or in part by the negligent acts or omissions of third-party or anyone else for whom it was responsible where there was no finding that the third-party defendant or its agents were negligent or that such negligence proximately caused plaintiff's injuries]). Accordingly, that branch of DiFazio's motion seeking to dismiss Verizon's claim against it, as it is premised upon contractual indemnification, is denied.[FN2]

Conclusion

Time Warner's motion is granted only to the extent of granting it summary judgment dismissing all cross claims and counterclaims against it, with prejudice. [*15]

New Hampshire's cross motion seeking summary judgment against Time Warner is granted and the court declares that New Hampshire has no duty to defend or indemnify Time Warner in the underlying personal injury action. The court therefore does not reach that branch of New Hampshire's cross motion in which it seeks an order finding that Travelers must provide co-insurance to Time Warner.

DiFazio's motion for summary judgment is granted to the extent of dismissing all claims, cross claims and counterclaims asserted against it except for the claim for contractual indemnification asserted by Verizon.

All other relief requested is denied. All remaining claims, cross claims and counterclaims are severed and shall continue.

The foregoing constitutes the order and decision of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1: In order to differentiate between the company and the man, the company shall be referred to as DiFazio and the man shall be referred to as John DiFazio.

Footnote 2: Although Verizon argues that because the indemnification clause in DiFazio's contract is enforceable, DiFazio must be ordered to reimburse Verizon for all legal expenses incurred in the defense of the underlying personal injury action and that it is entitled to indemnification from DiFazio, these demands for relief will not be addressed herein, since Verizon fails to seek such affirmative relief in a properly noticed motion or cross motion (see CPLR 2214 and 2215; see generally Chun v North American Mortgage. Co., 285 AD2d 42 [2001] [the court was virtually without jurisdiction to grant the relief afforded to defendants where there was an absence of a notice of cross motion or any other notice to plaintiff that she would be required to respond to a motion to dismiss]; Bauer v Facilities Dev., 210 AD2d 992 [1994] [affidavits submitted in opposition to defendants' motions were insufficient to constitute a cross motion]).