291 Broadway Realty Assoc. v Weather Wise Conditioning Corp.
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291 Broadway Realty Assoc. v Weather Wise Conditioning Corp. 2011 NY Slip Op 32756(U) October 4, 2011 Supreme Court, New York County Docket Number: 702513/2008 Judge: Doris Ling-Cohan 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. SCANNEDON 1011312011 [* 1] [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 36 X 291 BROADWAY REALTY ASSOCIATES, &a 291 BROADWAY REALTY ASSOCIATES, LLC, SUTTON MANAGEMENT CORP., and STAEiBUCKS CORPOIRATION, d/b/a STARlSUCKS COFFEE COMPANY, Third-party Plaintiffs, ------_I1--__1--____---I--_-"----I---_I-----_--r__l-------I1-1__ Third-party Index NO.: 7025 13/2008 DECISION/ORDER -againstP P Motion Seq. No.: 001 FILED OCT 12 2011 In this third-party indemnity action, third-party defendant Weather Wise W YO N E Cond&o"i"g FFICE Corp. (Weather Wise) moves, and third-party defendant Gabe Cons&&###?o~.~&? cross- moves for summary judgment to dismiss the third-party complaint (motion sequence number 001). For the following reasons, the motion is denied and the cross motion is withdrawn on consent. BACKGROUND This third-party insurance action arose in the wake of a related personal injury/negligence action that was commenced on February 14,2008 by Edwin Martinez (Martinez) under Index Number 102513/0&. See Notice of Motion, Exhibit A. Martinez, a construction worker, alleged that, on August 3 1,2007, he wm injured when he fell from an elevated walkway through a ceiling panel and to the floor below i a building (the building) located at 291 Broadway in the n County, City and State of New York. Id., 7 32. The building is owned by third-party plaintiff 291 Broadway Realty Associates, d d a 29 1 Broadway Realty Associates, LLC (291 Broadway), 1 -a [* 3] a New York limited liability corporation. Id., 77 3, 11 , Third-party plaintiff Sutton Management Corp. (Sutton), also a New York corporation, is the building s managing agent. Id. 5 , 14. Third-party plaintiff Starbucks Corporation d/b/a Starbucks Coffee Company (Starbucks), a Washington State corporation that is licensed to do business in New York, is the tenant of the commercial premises in the building where Martinez was injured. Id., 8, 16. Starbucks settled the personal injwy/negligence action with Martinez on July 6,2010. Id.; Rubenstein Mimation, T[ 2. On December 7,1999, Starbucks and third-party defendant Gabe had executed a constmction management agreement (the Gabe contract) by which Starbucks engaged Gabe as the contractor for the build-out of Starbucks s commercial space i the building. Sse Notice of n Cross Motion, Goins Afiirmation, 7 10; Exhibit 1. The relevant portion of the G a b contract provides as follows: &-tick 8 Indemnification and Insurance Indemnification. To the fullest extent permitted by law, Contractor [k., 8.1 Gabe] shall indemnify, defend (at Owner s [i.e., Sturbucks s] option) and hold harmless Owner, Owner s landlord [i.e.,291 Broadway] and each of the aforementioned parties affiliated companies [ i a , Sutton] ... (collectively, Indemnitees )for, fiom and against any and all claims, demands, causes of action, penalties, attachments,judgments, losses, damages, costs and expenses (including, without limitation, defense, settlement and attorney s fees), and liabilities (including, without limitation, claims and liabilities relating to bodily injury ..-)(collectively, Claims ) directly or indirectly arising out of, resulting h m or related to this agreement or the work, including, without limitation, any failure by Contractor to properly perform the work in accordance with the Contract Documents, or negligence or misconduct of Contractor or Contractor s officers, agents, employees or subcontractors, even if such C a m or liabilities are lis caused i part by the negligence of any Indemnitee. n [* 4] Id.; Exhibit I . Gabe s president, Ernest Bertuzzi (Bartuzzi), has submitted an affidavit i which n he states that Gabe completed all of its work for Starbucks as of July 18,2000, including installing the platform in the ceiling that the HVAC unit rested on, and that it performed that work to the specifications that had been provided by Starbucks construction manager, Otilio Rivera (Rivera). Id.; Exhibit G . Bertuzzi further states that Starbucks had hired a company called New York Design Architects to design, inspect and approve all of Gabe s work, including the aforementioned platform. Id. Berhuzi finally states that, in the 10 years after G a b had received its final payment, it did not receive any complaints relating to its work for Starbucks. Id. Later, on December 20,2006, Starbucks and Martinez s employer, third-party defendant Weather Wise, executed a store services agreement (the Weather Wise contract) whereby Starbucks engaged Weather Wise to perform ongoing maintenance and repair work on the HVAC system in Starbucks s commercial space. See Notice of Motion, Rubenstein Affhmtion, fl 14, Exhibit G. The relevant portion of the Weather Wise contract provides as follows: Indemnification. Contractor [i.e., Weather Wise) hereby indemnifies and holds harmless Starbucks, its officers, directors, employees, agents, subsidiaries and other affiliates, from and against any and all claims, damages, liability and expenses (including attorney s fees) incurred by reason of ... Contractor s (or its allowed subcontractor s) negligent and/or willful acts or omissions in carrying out its obligations under this agreement. 11. Id.; Exhibit G. As previously mentioned, Martinez commenced the underlying action herein on February 14,2008. Id,; Exhibit A. Thereafter, 291 Broadway, Sutton and Starbucks (third-party plaintiffs) I Neither of the third-party defendants was ever deposed, despite the court having issued a number of discovery orders that provided for them to be. See Notice of Cross Motion, Goins Affirmation, fl 10,n 1. 3 [* 5] commenced the instant third-party action on April 7,2010, by filing a summons and complaint that sets forth causes of action for: 1) contractual indemnification (against Weather Wise); 2) common-law indemnificatiodcontribution (against Weather Wise); 3) breach of contract (against Weather Wise); 4) contribution (against Gabe); 5 ) common-law indemnification (against Gabe); and 6) contractual indemnification (against Gabe). Id.; Exhibit C. Both third-party defendants served timely answers. Id.; Exhibits D, E. By an order dated June 2,2010, the court severed the third-party action from the underlying action. Id.; Exhibit H. As was also previously mentioned, Starbucks settled the underlying action with Martinez on July 6,2010, for the sum of $675,000.00. Id.; Rubenstein Affirmation, 7 2. Thereafter, Weather Wise and Gabe submitted the instant motion and cross motion for summary judgment to dismiss the third-party complaint (motion sequence number 001). By stipulation dated May 13,20 1 1, Gabe withdrew its cross motion on consent. Weather Wise s motion remains. DISCUSSION When seeking summary judgment, the moving party bears the burden of proving, by competent, admissible evidence, that no material and triable issues of fact exist. See Winegrudv New York Univ.Med. Ctr.,64 NY2d 85 1,853 (1985). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action. Sea e.g. Zuckerman v Ciq o New York, 49 NY2d 557,562 (1980); Pernbmton v New York Cir;v f ?k. Auth., 304 AD2d 340, 342 (lut Dept 2003). Here, Weather Wise s motion seeks summary judgment to dismiss the three third-party claims asserted against it. As previously mentioned, the first claim against Weather Wise is for contractual 4 [* 6] indemnification, based on paragraph 1 1 of the Weather Wise contract. See Notice of Motion, Exhibit C, 20-28,Weather Wise argues that this claim must fail, as a matter of law, because the contractual indemnity provision upon which it is based is void for violating General Obligations Law 5 5-322.1. See Notice of Motion, Rubinstein Mimation, 15- 18. Weather Wise specifically asserts that the fact that the indemnity provision of the Weather Wise contract does not contain saving language places it in violation of General Obligations Law 8 5-322.1, therefore, it must be construed as an improper attempt to indemnify Starbucks against the consequences of its own negligence. Id., 7 17, The third-party plaintiffs respond that Weather Wise s proposed construction of the instant indemnity clause is unjustified, because the plain , language of that clause clearly contemplates only partial indemnity for [Weather Wise s] (or its allowed subcontractor s) negligent acts andlor omissions. See Tompkins Raply AmzPlation, 7 22. In its reply papers, Weather Wise notes that the issue of Starbucks negligence was never litigated because of Starbucks s July 6,2010 settlement of the underlying action by paying Martinez $675,000.00. See Rubinstein Reply A f f - a t i o n , 1 2 . Weather Wise then argues that, the third-party plaintiffs claim of indemnification from Weather Wise .,. is unenforceable, because Starbucks is seeking indemnity for its own negligence, or its own voluntary payment. Id., 3. Upon review of the within submissions and arguments with respect to the validity of the subject indemnity clause, Weather Wise contract s indemnity clause does not violate General Obligations Law Q 5-322.1. In Kowalewski v North Gen. Hosp. (266 AD2d I 14, 1 14-1 15 [1 Dept 1999]), the Appellate Division, First Department, held that an indemnificationclause [that] provides indemnity only to the extent of loss caused by the negligent acts of the subcontractor andor its agents ... is ... enforceable under General Obligations Law 4 5-322.1 . 5 [* 7] Here, too, the Weather Wise contract s indemnity clause plainly obligates Weather Wise to provide indemnity on& against Contractor s [i.e., Weather Wise s] (or its allowed subcontractor s)negligent and/or willful acts or omissions in carrying out its obligations under this agreement. See Notice of Motion, Exhibit G . There is simply no language contained in such clause that could be read as obligating Weather Wise to provide any other indemnity to any other party. Therefore, the court rejects Weather Wise s argument that the instant indemnity provision violates General Obligations Law 5 5-322.1, thus, Weather Wise s motion for and summary judgment dismissing the first third-party claim against it on this ground is denied. The second third-party claim against Weather Wise is for contributiodcommon-law indemnification. See Notice of Motion, Exhibit C, 77 29-33. Weather Wise notes t a ,because ht it was Martinez s employer, Worker s Compensation Law 5 11 bars such claims unless the plaintiff has suffered a grave injury, within the statutory definition of that term. See Notice of Motion, Rubinstein Affirmation, 7 19. Weather Wise then argues that the instant claim is barred because Martinez s complaint does not allege that he suffered any such grave injury. Id. The court notes that the third-party plaintiffs do not address this argument i their opposition papers. n However, the court also notes that the Appellate Division, First Deparanent, held in Altonen Y Toyotu Motor Credit Corp. (32 AD3d 342, 343 [13 Dept ZOOS]) that Lilt is ... the burden of the party seeking summary judgment to show, by competent admissible evidence, that the plaintiffs injuries were not grave [internal citation omitted]. There, the Court specifically rejected the defendant s argument that the plaintiffs bill of particulars and deposition testimony could a o r d sufficient evidence to establish, as a matter of law, that the pl&tiffs injuries were not grave. I d Here, similarly, Weather Wise merely argues that Martinez s bill of particulars does not allege that he suffered a grave injury, but does not offer any indepcndont evidence regardhg 6 [* 8] the grave (or not grave ) nature of Martinez s injury. Based on the rule of Ahonen, the court rejects Weather Wise s argument, as Weather Wise has failed to meet its burden of proof with respect to its request for summary judgment dismissing the second third-party claim asserted against it herein; thus, summary judgment is denied as to such claim. The fmal claim against Weather Wise is for breach of contract; specifically, that Weather Wise breached the Weather Wise contract by failing to obtain insurance that named Starbucks 8s an additional insured with respect to Weather Wise s work at the building. See Notice of Motion, Exhibit C,TIT[ 34-42.Although Weather Wise s motion purports to seek summary judgment dismissing this claim, its papers are devoid of any legal argument as to why the claim should be dismissed. Therefore, the court deems that Weather Wise has abandoned its request, and denies it on that ground. Accordingly, Weather Wisa s is denied in its entirety. DECISION ACCORDINGLY, for the foregoing reasons, it is ORDERED that the motion, pursuant to CPLR 3212, of third-party defendant Weather Wise Conditioning Corp. is denied; and it is further ORDERED that the cross motion, pursuant to CPLR 32 12, of third-party defendant Gabc Construction Corp. be withdrawn p consent; and it is furlher P h ORDERED that within 30 days of en 1c o h ord~ r i vy aplaintiffs shall serve a t copy upon all parties with notice of entry. Dated: New York, New York October ,2011 4 OCT 12 2011 ~ ~- Hon. Doris Ling-&hart, J.S.C. J:\Summary JudgmentL291broadwayvweatherwise.lana.wpd 7
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