Beniquez v Teresharan Land Co. of Manhattan LLC

[*1] Beniquez v Teresharan Land Co. of Manhattan LLC 2017 NY Slip Op 27020 Decided on January 13, 2017 Supreme Court, New York County Edmead, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on January 13, 2017
Supreme Court, New York County

Angel Beniquez, Plaintiff,

against

Teresharan Land Co. of Manhattan LLC and 132 EAST 30TH STREET CORPORATION, Defendants. TERESHARAN LAND CO. OF MANHATTAN LLC and 132 EAST 30TH STREET CORPORATION, Third-Party Plaintiffs, QUATTRO CONSTRUCTION MANAGEMENT LLC, Third-Party Defendant.



161555/2013



For plaintiff

BRIAN SETH ORLOW

THE ORLOW FIRM

Address:7118 MAIN ST, FLUSHING, NY 11367

Phone:718-544-4100

For Defendant

KATINA DESPAS

Melcer Newman PLLC

Address:111 John Street Suite 1500, New York, NY 10038

Phone:212-980-8470
Carol R. Edmead, J.

MEMORANDUM DECISION

In this personal injury action, third-party plaintiff Teresharan Land Co. of Manhattan LLC ("Teresharan Land") moves for summary judgment on its third-party claim against Quattro Construction Management LLC ("Quattro") for indemnification, including reasonable attorneys' fees and to dismiss Quattro's cross claim.

Factual Background

According to plaintiffs bill of particulars, plaintiff was injured while working at 132 E. 30th Street, New York City, when he began "wheeling a heavy container filled with garbage/debris" down a ramp "Just outside the front of the building," when "the ramp shifted? causing the container to fall over to plaintiff' (¶2, 5,6).

Teresharan Land argues that under its contract with plaintiffs employer Quattro (the "Contract"), Quattro is obligated to indemnify Teresharan Land, "to the fullest extent permitted by law," for all "claimed liability for bodily injury" (and attorneys fees) that arises "out of or result from the Work covered by this Contract Agreement" Since a finding of liability is not required to trigger indemnification, and plaintiffs complaint alleges a claim of liability against Teresharan Land for bodily injury while he was working in accordance with the Contract, Teresharan Land is entitled to indemnification. Teresharan Land should also be granted attorneys fees in attempting to defend this action, given that Quattro repeatedly failed to produce a witness for a deposition. And, since there is no evidence that Teresharan Land was actively negligent, and the claim against it is premised on statutory grounds as an owner, Quattro's crossclaim against Teresharan Land should be dismissed.

In opposition, Quattro notes that it resolved plaintiffs claims in principal "through a settlement resolution" and thus the motion is moot. Quattro requested Teresharan Land waive its claims or provide "any tender letters" along with legal bills and expenses, to no avail. In any event, Teresharan Land did not absolve itself from liability and technically, plaintiff still has negligence and Labor Law 200 claims pending against Teresharan Land. Further, the "claimed liability" language violates General Obligations Law §5-322.1 (the "GOL"). And, there is no contractual provision allowing attorneys' fees, or savings language as to attorneys' fees so as to prevent the award of attorneys' fees in the case of Teresharan Land's negligence, and Workers Compensation Law bars the claim for attorneys' fees sought. In the event the Court grants the motion, the Court should schedule a hearing to determine reasonable attorneys' fees, solely as fees incurred in defending suit, and not those attributable to prosecuting the third party action. And, Quattro attempted to produce a witness for deposition even though plaintiff's claims were resolved, but Teresharan Land was prepared to move forward. And, due to outstanding discovery, dismissal of Quattro's cross claim is unwarranted.

Discussion

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (People ex rel. Cuomo v Greenberg, 95 AD3d 474, 946 NYS2d 1 [1st Dept 2012]; Madeline D'Anthony Enterprises, [*2]Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012], citing Alvarez v Prospect Hosp.,68 NY2d 320, 324, 508 NYS2d 923, 501 NE2d 572 [1986] and Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions" (CPLR § 3212 [b]).

Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any material issue of fact (CPLR §3212[b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (Wing Wong Realty Corp. v. Flintlock Const. Services, LLC, 95 AD3d 709, 945 NYS2d 62 [1st Dept 2012] citing Alvarez v Prospect Hosp., 68 NY2d 320, 501 NE2d 572 [1986]; Ostrov v Rozbruch, 91 AD3d 147, 936 NYS2d 31 [1st Dept 2012]).

A party is entitled to full contractual indemnification provided that the intention to

indemnify can clearly be implied from the language and purpose of the entire agreement and the

surrounding facts and circumstances (Drzewinski v Atlantic Scaffold & Ladder Co Inc., 70 NY2d 774,777 521 NYS 2d 216 [1987]; Masciotta v Morse Diesel International, Inc., 303 AD2d 309, 758 NYS2d 286 [1st Dept 2003]).

The indemnification provision at issue provides as follows:

Indemnity. In consideration of the Contract Agreement, and to the fullest extent permitted by law, the Contractor shall defend and shall indemnify, and hold harmless ... the Owner of the property . . . from and against all liability or claimed liability for bodily injury ... all attorney fees ... arising out of or resulting from the Work covered by this Contract Agreement to the extent such Work was performed by or contracted through the Contractor or by anyone for whose acts the Contractor may be held liable, excluding only liability created by the sole and exclusive negligence of the Indemnified Parties.

At the outset, and contrary to Quattro's contention and caselaw cited, the inclusion of the

phrase "claimed liability" such that it can be read to indemnify Teresharan Land for its own

negligence and thus violate GOL 5-322.1, lacks merit (see Williams v. City of New York, 74

AD3d 479, 907 N.Y.S.2d 1 [1st Dept 2010] (contract "provided for partial indemnification by

including recognized 'savings' language ('To the fullest extent permitted by law')). And,

contrary to Quattro's contention, the indemnification provision's reference to "the fullest extent

permitted by law," which phrase appears at the beginning of the paragraph, applies to attorney's

fees. There is no indication in the indemnification provision that attorneys fees is exempt from

such savings language. Thus, Teresharan Land's indemnification for liability and attorneys fees

is subject to the saving's clause and thus the indemnification provision does not violate GOL§

5-322.1.

It is noted that GOL § 5-322.1 renders void and unenforceable agreements "purporting to

indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons ... caused by or resulting from the negligence of the promisee . . . [as] against public policy. . . In this regard, Teresharan Land's reliance on the "claimed liability" phrase of the [*3]indemnification provision so as to trigger Quattro's obligation thereunder in the absence of any finding that Teresharan Land was free from negligence, is misplaced. Such interpretation ignores the GOL 5-322.l's proscription against exempting Teresharan Land from liability to plaintiff for its own negligence, and also ignores the last phrase in the indemnification provision, to wit: "excluding only liability created by the sole and exclusive negligence of the Indemnified Parties."

Further, Quattro's claim, that the indemnification provision, including the attorneys' fees sought, violates the Workers' Compensation Law, for failing to expressly include claims made by employees (i.e., plaintiff herein) lacks merit. "Workers' Compensation Law § 11 prohibits third-party indemnification or contribution claims against employers, except in the case of a "grave injury" or where based upon a written contract entered into prior to the accident" (Giblin v. Pine Ridge Log Homes, Inc., 42 AD3d 705, 840 N.Y.S.2d 196 [4th Dept 2007]; Portelli v. Trump Empire State Partners, 12 AD3d 280, 786 N.Y.S.2d 5 [1st Dept 2004] (stating, "Since the parties entered into this written indemnification agreement prior to the date of plaintiffs accident, the indemnification claims against plaintiffs' employer are not precluded by Workers' Compensation Law § 11)). Here, the contractual indemnification provision broadly and clearly manifests an intent to indemnify TS for all liability for bodily injury and attorney fees arising out of or resulting from the Work covered by this Contract Agreement to the extent such Work was performed by or contracted through the Contractor. . . ." (Emphasis added)).

Nevertheless, "While a party who has been held liable to an injured worker solely on the basis of the statutory liability imposed by § 240(1), without any fault on its part, is entitled to recover under a contract of indemnity" Teresharan Land did not establish its freedom from negligence for plaintiff's injuries, or that it is held strictly liable without any fault on its part. Inasmuch as plaintiff's negligence and Labor Law 200 claims have not been dismissed against Teresharan Land, it cannot be said that Teresharan Land is strictly liable without any fault on its part. Therefore, Teresharan Land failed to establish summary judgment in its favor under the indemnification provision herein.

Conclusion

Based on the foregoing, it is hereby

ORDERED that the motion by third-party plaintiff Teresharan Land Co. of Manhattan LLC for summary judgment on its third-party claim against Quattro Construction Management LLC for indemnification, including reasonable attorneys' fees and to dismiss Quattro's cross claim is denied; and it is further

ORDERED that by third-party plaintiff Teresharan Land Co. of Manhattan LLC shall serve a copy of this order with notice of entry upon all parties within 20 days of entry.

This constitutes the decision and order of the Court.

Dated: January 13, 2017______________________________________

Hon. Carol Robinson Edmead