Costanzo v International Cargo Mktg. Consultants, Inc.
Annotate this CaseDecided on June 25, 2010
Supreme Court, Queens County
Joseph A. Costanzo
against
International Cargo Marketing Consultants, Inc., et al.
28984/2009
For the Plaintiff: Law Office of David R. Lewis & Associates, by David R. Lewis, Esq., 998 Old Country Road [suite 4], Plainview, NY 11803
For Defendants Aero JFK, LLC, Aeroterm US, Inc., and International Cargo Marketing Consultants, Inc. d/b/a Alliance Airlines: Alimonti Law Office, PC, by Lydia S. Antoncic and Frederick P. Alimonti, Esqs., 200 Mamaroneck Ave. [suite 304], White Plains, NY 10601
For Defendant Triangle Services, Inc. s/h/a Triangle Services d/b/a Maintech: Nicoletti Gonson Spinner & Owen, LLP, by Christine Vetter, Esq., 555 Fifth Ave. [8th floor], NY, NY 10017
Charles J. Markey, J.
The following papers numbered 1 to13read on this motion by defendants International Cargo Marketing Consultants Inc., d/b/a Alliance Airlines, Aero JFK, LLC, and Aeroterm US, Inc. for an order granting summary judgment against co-defendant Triangle Services Inc., d/b/a Maintech on their cross claims for common-law indemnification in the sum of $45,000.00, together with attorney's fees, costs, and disbursements incurred in the defense of this action; and granting to defendants Aero JFK, LLC, and Aeroterm US, Inc. summary judgment against co-defendant Triangle Services Inc., d/b/a Maintech on their cross claims for contractual indemnification in the sum of $45,000.00, together with attorney's fees, costs, and disbursements incurred in the defense of this action.
Plaintiff Joseph A. Costanzo (Costanzo) alleges that he sustained personal injuries on December 7, 2007, when he slipped and fell into an open storm drain, in the area of Building 23, cargo area B, bay 42, at JFK International Airport in Queens County, New York. Defendant Aero JFK LLC (Aero JFK) is the assignee of a lease of the air cargo facility located at Buildings 21 and 23 at JFK International Airport. Co-defendant International Cargo Marketing Consultants, d/b/a Alliance Airlines (Alliance Airlines) is the sub-lessee of said property. Co-defendant Aeroterm US Inc (Aeroterm) is the property manager for Aero JFK LLC.
Co-defendant Triangle Services, Inc. d/b/a Maintech (Maintech) entered into a service agreement with Aeroterm US Inc. dated June 1, 2007, and executed in August 2007, whereby Maintech agreed to perform, with respect to Buildings 21 and 23, certain inspections and maintenance on a specified interval of time, as follows:
Day to day Inspection/Maintenance Items perform common area maintenance as necessary. Coordinate with appropriate contractors Aeroterm for major repairs and special projects. [*2]Perform routine inspection of building interior and coordinate repairs as needed. Check exterior areas for FOD issues and pursue with tenants as necessary. Perform routine inspections of building systems and coordinate repairs as necessary. Coordinate with contractors on routine service contracts. Provide or arrange for vendor escorts as required."
Weekly Inspection/Maintenance Items Perform routine inspections of building exterior, ramp areas and coordinate repairs as needed; check for related FOD issues and pursue with tenants as necessary. Visually inspect Landscaping, grounds, irrigation system, parking lot lighting, pavement and curbing, repair as possible and or address accordingly. Visually inspect exit signs, fire pulls, fire alarm systems equipment and fire sprinkler system valves and related life safety systems for damage and tampering, repair as possible, contact vendor as needed for additional support, parts and devices. Inspect roof and roof drains. Check existing roof mounted fixtures and equipment, confirm that no new fixtures or equipment have been installed on roof and address accordingly. (Note: no new items will be installed on roof without prior written approval from Aeroterm). Inspect obstruction, building mounted and ramp lighting, repair as possible and or address accordingly. Inspect for tenant damage, advise tenant responsible and notify corporate office immediately of damage. Inspect fencing of property and insure it is secured and not damaged. Take immediate action to have repaired if required, repair as possible and or address accordingly. Inspect security sensitive door closures, locks, and handles on doors for proper operation and address accordingly.
Monthly Inspection/Maintenance Items Open inspector's valves on fire alarm system and leave open for 45 seconds to check audible alarm. Open main valves on water inlets for flow and drain slowly until bells indicating water flow sounds. Inspect and run Fire and Jockey Pumps toconfirm proper operation. Inspect storm drains on aircraft apron and intruck dock area; clean as required and or addressaccordingly. Check operation of sewerage ejection pumps in Building 21. Test emergency lighting and address accordingly. Perform in depth inspection of Tenant premises including lighting, ceiling tiles, wall finish, tripping hazards, supply and return air ducts/grills, potential circuit overloads, fire hazards, general housekeeping, water leaks, and any other items that could cause damage to the asset and address accordingly. Monthly meter readings. Provide or arrange for Vendor related toMonthly Fire Extinguisher inspection." [*3]
Quarterly/Annual Inspection/Maintenance Items Coordinate with Aeroterm on quarterlyinspection and related items including but notlimited day to day weekly and monthly items and their resolution. Accompany Airport Officials during inspection/testing of fire/safety equipment. Note condition of equipment and address accordingly.
The service agreement contains an indemnification provision which provides as follows:
To the maximum extent permitted by law, Contractor [Maintech] agrees to indemnify, hold harmless and defend (with counsel acceptable to Property Manager or Owner) Property Manager [Aeroterm], Owner [Aero JFK], Owner's Managing Agent, their respective parent and affiliate companies, subsidiaries, officers, directors, employees, agents and consultants, (herein referred to "Indemnified Parties") from and against all claims, demands, actions, fines, penalties, liabilities, losses, taxes, damages, injuries and expenses ("Losses")(except to the extent such Losses arise directly from the negligence of the Indemnified Parties) in any manner related to, arising out of or resulting from:
(a) any failure of Contractor to perform its obligations under this Agreement;
(b) any acts of Contractor beyond the scope of its authority under this Agreement;
(c) any negligence, willful misconduct or other wrongful acts or omissions of Contractor or any subcontractor hired by Contractor or their respective officers, directors, partners, employers, agents and other representatives
(d) any injury, damage or death to Contractor, its officers, directors, partners, employees, agents and other representatives; or
(e) any injury, damage or death to any independent contractors of Contractor, or their officers, directors, partners, employees, agents and other representatives.
(f) failure to pay employee taxes, withholdings or failure to obtain workers' compensation insurance or similar.
(g) any violation of any statute, ordinance, building code or regulation.
The provisions of this Section 4 shall survive the expiration or earlier termination of this Agreement.
In August 2008, Costanzo, a Suffolk County resident, initially brought this action to recover damages for injuries sustained in the December 7, 2007 accident, in the Supreme Court, Bronx County, solely against Alliance Airlines and the Port Authority of New York and New Jersey (Port Authority). After issue was joined, the Port Authority moved to dismiss the complaint pursuant to CPLR 3211, and both the Port Authority and Alliance Airlines moved for a change of venue to Queens County. The plaintiff then cross-moved to amend the caption and to add as defendants Aero JFK, Aeroterm, and Maintech. The Hon. Kenneth L. Thompson, in an order dated July 28, 2009, granted: the Port Authority's motion to dismiss the compliant, the [*4]motion for a change of venue, and the plaintiff's motion to amend the caption and to serve the amended summons and notice on all defendants. No depositions have been conducted as to any party.
Defendant Alliance Airlines, in its verified answer to the plaintiffs' verified amended compliant, interposed ten affirmative defenses, and cross claims against Maintech for contribution, and for common-law indemnification. Co-defendant Aero JFK, in its verified answer to the plaintiffs' verified amended compliant, interposed eleven affirmative defenses, and cross claims against Maintech for contribution, and for common-law indemnification. Co-defendant Aeroterm, in its verified answer to the plaintiffs' verified amended complaint, interposed ten affirmative defenses, and cross claims against Maintech for contribution, and for common law and contractual indemnification. Co-defendant Maintech, in its verified answer to the amended complaint, interposed ten affirmative defenses and cross claims against all of the co-defendants for contribution and indemnification.
On December 1, 2009, counsel for the plaintiff and counsel for co-defendants Alliance Airlines, Aero JFK, and Aeroterm entered into a partial stipulation of discontinuance, whereby the plaintiff discontinued his action against these defendants with prejudice. The stipulation provides that "[a]ny and all claims between plaintiff and TRIANGLE SERVICES d/b/a MAINTECH shall continue, as well as any and all claims and cross-claims between defendants INTERNATIONAL CARGO MARKETING CONSULTANTS, INC. d/b/a ALLIANCE AIRLINES, AERO JFK LLC, AEROTERM US, INC., and TRIANGLE SERVICES d/b/a MAINTECH."
The parties, however, failed to file said stipulation of discontinuance with the Court, as required by CPLR 3217(d). Maintech did not execute the December 1, 2009 stipulation, and did not enter into any agreement with the co-defendants with respect to the cross claims.
In view of Alliance Airlines, Aero JFK, and Aeroterm's settlement with the plaintiff, these co-defendants' cross claims for contribution are barred by General Obligations Law section 15-108(c) (see, Glaser v Fortunoff of Westbury Corp., 71 NY2d 643, 645 [1988]; Rosado v Proctor & Schwartz, 66 NY2d 21 [1985]; Boeke v Our Lady of Pompei School, 73 AD3d 825, 826-827 [2nd Dept. 2010]; Farrell v Gristede's Supermarkets, Inc., 50 AD3d 603 [1st Dept. 2008]; Edge Mgt. Consulting, Inc. v Blank, 25 AD3d 364, 366 [1st Dept.], lv. to appeal dismissed, 7 NY3d 864 [2006]).
The right to indemnity arises from a contract, express or implied, and full, not partial, reimbursement is sought (McDermott v City of NY, 50 NY2d 211 [1980]; McFall v Waldron, 47 NY2d 297 [1979]; Mauro v McCrindle, 70 AD2d 77, 80 [2nd Dept. 1979] [Rabin, J.], aff'd on the opinion below, 52 NY2d 719 [1980]). The moving defendants may not circumvent the statutory prohibition set forth in General Obligations Law section 15-108 by presenting their claims as one for indemnification (see, Nielsen v Greenman Bros., 123 AD2d 850 [2nd Dept. 1986]; Salonia v Samsol Homes, 119 AD2d 394 [2nd Dept. 1986]). Mere use of the term [*5]"indemnification" is insufficient to evade the bar of subdivision (b) of section 15-108 of the General Obligations Law (Siffin v Rambuski, 87 AD2d 979 [4th Dept. 1982]). A proper basis for the claim must be stated. If there is actual wrongdoing by the person seeking to assert an indemnification claim, that claim is not viable.
In order to succeed on the common law claims for indemnification, the moving defendants are each required to establish that they are free from negligence and that plaintiff's accident was caused by Maintech's negligence. With respect to Aeroterm's claim for contractual indemnification, this defendant is required to establish, pursuant to the relevant terms of the service agreement, that it is free from negligence and that plaintiff's accident arose out of or resulted from Maintech's failure to perform its obligations under the service agreement; or from any acts of Maintech that were beyond the scope of its authority under the service agreement, or from any negligence, willful misconduct, or other wrongful act or omissions of Maintech or Maintech's subcontractor.
Counsel for the movants, in her affirmation and memorandum of law, asserts that Maintech has refused to indemnify Aero JFK or Aeroterm pursuant to the service agreement, despite numerous requests to do so, as evidenced by the letters dated August 25, 2007, October 27, 2009, and January 5, 2010, and Maintech's response dated December 18, 2009. An examination of these letters reveals that, prior to and after entering into the settlement with the plaintiff, and after executing the partial stipulation of discontinuance, counsel for the settling defendants maintained that Maintech "is primarily, if not solely, responsible for this incident" and demanded that Maintech contribute 75 percent, i.e. $30,000.00, towards the $45,000.00 settlement. These letters on their face do not support the cross claims for indemnification as counsel sought contribution from Maintech, which is barred by General Obligations Law section 15-108.
Neither Aero JFK nor Alliance Airlines have submitted copies of their lease and sublease agreements, and thus have not established the extent of their contractual responsibility for the maintenance of the leased premises, including the area encompassing the storm drain where the accident occurred. In addition, these defendants have not established that Maintech, pursuant to its service agreement, assumed all of the tenant's and subtenant's obligations under their lease and sublease agreements with respect to the maintenance of the subject property, including the storm drain.
In opposition to the co-defendants' motion, Stephen Lobasso (Lobasso), Maintech's Chief Financial Officer, states in his affidavit that, pursuant to the service agreement, Maintech was to inspect the truck dock area, a paved area adjacent to the loading dock at the subject premises. He states that this included a visual inspection in order to determine whether any work was necessary for the storm drains at the truck dock area; that this was done on a monthly basis; and that, if any work was required, a proposal would be submitted to Aeroterm; and that Maintech would then await Aeroterm's approval of such work. He states that service agreement only required Maintech to perform monthly inspections as regards the storm drains, and that Maintech [*6]did not perform any regular routine maintenance or repair work for the storm drains in the truck dock area. Lobasso states that proposals and approvals were required for the performance of any necessary work that may have been discovered during a monthly inspection, as the service agreement did not contemplate the performance of such work by Maintech.
Roland Pelliccia (Pelliccia), the site manager for Maintech, states, in his affidavit, that he was the only Maintech employee that was at the subject premises on a daily basis in 2007. He states that, on October 23, 2007, he was advised by "KJ" from Alliance Airlines that there was a broken storm drain grate at the truck bay area, located at Building 23, door 42. He stated that he immediately spoke toDarrin Gustafson (Gustafson), Aeroterm's Property Manager, and advised him of the broken drain grate, and that Gustafson requested that Maintech make necessary repairs to temporarily provide a cover to the drain until a permanent cover could be located. Pelliccia states that, on October 23, 2007, he purchased plywood and cut it to fit into the open drain to provide a temporary cover, and that as such work was not generally performed by Maintech, he submitted a proposal to Aerotech for payment for the installation of the plywood. Pelliccia states that, once the plywood was installed, he placed a cone and barrier an the truck bay adjacent to the storm drain, and immediately told "KJ" that no Alliance Airlines vehicles or any other vehicles present to pick up or deliver cargo were to park at door 42, Building 23.
Pelliccia states, furthermore, that, on October 24, 2007, he contacted Campbell Foundry Company, on behalf of Aeroterm, to obtain quotes for permanent drain gates; that the gates were subsequently ordered by Aeroterm directly; and that while he has no personal knowledge as to whether the gates were ultimately received by Aeroterm, based upon an email he received from Gustafson he believes the gates were delivered on February 1, 2008. He states that after he installed the temporary plywood cover, and prior to the December 7, 2007 accident, he observed, at least on two occasions, that the cone and barrier had been removed from the site of the temporary cover at door 42, and that, on at least two occasions, he saw an Alliance Airlines vehicle parked at door 42 on top of the temporary cover. He states that, on each of these occasions, he placed the cone and barrier back on the location of the temporary cover, and spoke with "KJ" in order to remind him that no vehicles could be parked at door 42.
Pelliccia adds that, since he did not keep a written record, he cannot recall the exact dates when he observed these events. He further states that from the time he installed the plywood cover, to the date of the accident, he never observed that the plywood cover was missing or broken during his monthly visual inspections of the storm drains; that he was never advised by Aeroterm or any other entity that the temporary plywood cover was improper or insufficient; and that neither Aeroterm nor any other entity requested that Maintech perform any additional inspection, repair, or maintenance with regard to the storm drain on the aircraft apron or truck dock area.
Pelliccia states that, on January 1, 2008, "KJ" advised him that Alliance Airlines had received notice of the December 7, 2007 accident. He then advised Gustafson that he had previously observed Alliance Airlines vehicles parked at door 42. Pelliccia attached to his [*7]affidavit copies of emails between Gustafson, Michael Minear, Aeroterm Vice-President, Eastern Region, and Steve Bogensko, Controller for Alliance Airlines, dated January 22, 2010, that pertain to the problems with the subject storm drain.
The moving co-defendants, in reply, have submitted an affidavit from Gustafson, the senior property manager for Aeroterm. Gustafson states that he is based in Annapolis, Maryland, oversees general operations at Aero JFK's facilities at JFK International Airport, and interacts with Maintech regarding facilities maintenance and operations at said airport. He states that neither Aeroterm nor Aero JFK have any employees stationed on site, and that neither Aeroterm nor Aero JFK are responsible for day-to-day supervision or maintenance of Aero JFK facilities, as this duty was contracted to Maintech.
The documentary evidence and affidavits establish that Maintech submitted a form proposal dated May 24, 2007, to Aeroterm, to tack weld all drainage gates at buildings 21 and 23. The proposal states that "[g]rates are being removed by others causing a safety hazard. Welding the grates together will prevent them from being removed easily." Although there is no signature on the form's authorization line, Maintech sent a bill to Aeroterm dated September 22, 2007, which referred to the May 24, 2007 proposal, and described the work performed as "Tack weld all drainage gates at building 21 and 23." This bill is marked received and approved on November 2, 2007. There is also evidence that the tack welding was performed prior to the plaintiff's accident. However, regardless of whether tack welding was performed, there is no evidence that this contributed to the plaintiff's accident. On October 23, 2007, Alliance Airlines reported that the storm drain grate was broken and not missing, and Maintech's employee, Pelliccia, observed that the grate was broken and lying in the storm drain. There is no evidence that tack welding would have prevented the gate from breaking.
Maintech submitted a proposal form to Aeroterm, that describes the scope of work as "extra parts and labor for the month of October" and states that on:
10/23-Purchase and install plywood cover broken drain grates at Alliance B23. On 10/23 KJ from Alliance Air told me that 2 drain grates broke at door 42 at building 23 and that he had placed a cone in front of it. When I inspected the damage the cone was in the drain with the broken grates. I called [Gustafson,] and he asked me to take care of it right away because it was a safety issue. I purchased some plywood and cut it to size to fit in the hole. This will prevent anyone from falling into the drain and getting injured while we order the drain.
Although Pelliccia obtained rate quotes for replacement drain grates, there is no evidence that he had the authority to order these grates and the documentary evidence establishes that Campbell Foundry Company sent a fax dated October 24, 2007, and an invoice dated October 30, 2007, to Aeroterm, for 10 grates, to be shipped to Building 23. This invoice is marked received and approved on December 6, 2007, with a notation to re-bill the drain grates to Alliance at JFK and to Lufthansa at JFK. Undisputedly, the new grates were not received and installed prior the plaintiff's accident. [*8]
Aeroterm, the property manager for Aero JFK, has not submitted a copy of any agreement it has with Aero JFK, and thus has failed to establish what its obligations were as property manager. The affidavit submitted by Gustafson does not establish that Maintech assumed all of Aeroterm's obligations with regard to the subject real property.
Contrary to the assertions of the movants' counsel, the evidence presented here is insufficient to establish that Maintech did not perform its obligations under the service agreement or that it was negligent. Rather, the evidence establishes that, on October 23, 2007, an employee of Alliance Airlines, identified here as JR, informed Maintech's employee, Pelliccia, that the grates to the storm drain at Building 23, were broken; that Pelliccia observed the broken grates, and immediately contacted Aerotech; and that Pelliccia fitted a temporary plywood cover over the drain, and marked the area with a cone and barrier. Pelliccia also notified Alliance Airlines that they should not park vehicles in that area or permit others to park vehicles in that area.
Pelliccia sent proposals to Aeroterm that informed them of the temporary repair, and was reimbursed for his expenditures. Pelliccia subsequently inspected the area, and, on at least four occasions prior to the plaintiff's accident, observed that the cone and barrier had been moved and that Alliance Airlines was permitting trucks to park in this area. On each such occasion, he repositioned the cone and barrier, and again instructed Alliance Airlines not to park or permit others to park in that area. Pelliccia did not observe the temporary drain cover to be damaged or missing prior to the plaintiff's accident.
There is no evidence that Aeroterm ever objected to the measures taken by Maintech, or instructed Maintech to perform any further temporary repairs, or erect any other barriers around the storm drain, prior to the plaintiff's accident. Counsel's bare assertions that the measures taken by Maintech were inadequate and that permanent drain covers should have been installed at an earlier date, are insufficient to warrant the granting of summary judgment on the cross claims for indemnification.
In view of the foregoing, defendants' motion for summary judgment, on their cross claims
for indemnification, is denied in its entirety.
Dated: June 25, 2010
J.S.C.
Appearances of Counsel:
For the Plaintiff: Law Office of David R. Lewis & Associates, by David R.
Lewis, Esq., 998 Old Country Road [suite 4], Plainview, NY 11803
For Defendants Aero JFK, LLC, Aeroterm US, Inc., and International Cargo
Marketing Consultants, Inc. d/b/a Alliance Airlines: Alimonti Law Office, PC, by Lydia S.
[*9]Antoncic and Frederick P. Alimonti, Esqs., 200 Mamaroneck
Ave. [suite 304], White Plains, NY 10601
For Defendant Triangle Services, Inc. s/h/a Triangle Services d/b/a
Maintech: Nicoletti Gonson Spinner & Owen, LLP, by Christine Vetter, Esq., 555 Fifth
Ave. [8th floor], NY, NY 10017
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