Velez-Tejada v 4525-4555 Apts. Corp.
Annotate this CaseDecided on January 19, 2018
Supreme Court, Bronx County
Luis Velez-Tejada, Plaintiff,
against
4525-4555 Apartments Corp., et al., Defendants.
24467/2013E
For second and third third-party defendant Dynamic Hoisting Scaffolding, Inc.: Cascone & Kluepfel, LLP (Anthony J. Pagliuca) (movant)
For defendant/third party plaintiff Spring Scaffolding, LL" target="_blank">Vega v. Restani Constr. Corp., 18 NY3d 499 [2012]). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 NY2d 738 [1993]).
II. Applicable Law and Analysis
A. Second Cause of Action - Contractual Indemnification
Workers' Compensation Law §11 prohibits third-party indemnification claims against a plaintiff's employer unless the claim is "based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution or indemnification of the [third-party plaintiff]" (see Flores v. Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 367, rearg. denied 5 NY3d 746 [2005]).
In this matter, Dynamic established its prima facie entitlement to judgment as a matter of law with respect to the second cause of action in the third-party and second third-party complaints seeking contractual indemnification, by demonstrating the absence of any written agreement between itself and the third/second-third party plaintiffs that was controlling at the time of this accident (see Vail v. 1333 Broadway Assoc., LLC., 105 AD3d 636, 637 [1st Dept. 2013]). Spring's president William Laffey testified that it retained Dynamic, however there was no written agreement regarding the work in effect as of the date of this accident (see Laffey EBT-2 at page 11-15). The only written contract containing an indemnification clause is dated April 9, 2014, nearly a full year after this accident occurred. In opposition to the motion, the third-[*3]party plaintiffs argue that there is an issue of fact as to whether the parties intended this April 9, 2014 agreement to have retroactive effect.
"Workers' Compensation Law §11 has been held to provide that '[a] term in a contract executed after a plaintiff's accident may be applied retroactively where evidence establishes as a matter of law that the agreement pertaining to the contractor's work "was made 'as of' [a preaccident date], and that the parties intended that it apply as of that date'" (see Elescano v. Eighth-19th Co., LLC., 13 AD3d 80, 81 [1st Dept. 2004], quoting Pena v. Chateau Woodmere Corp., 304 AD2d 442, 443 [1st Dept. 2003], appeal dismissed, 2 AD3d 1488 [1st Dept. 2003], quoting Stabile v. Viener, 291 AD2d 395, 396 [2nd Dept. 2002], lv. dismissed, 98 NY2d 727 [2002]).
In this case, contrary to the third-party plaintiffs' contentions, there is no evidence that the parties intended the April 9, 2014 contract to have retroactive effect (see Regno v. City of New York, 88 AD3d 610 [1st Dept. 2011]). The contract clearly states that the parties "agree to use this MASTER subcontractor agreement that binds the [Dynamic] for all projects done for [Spring], for a period of ONE CALENDAR YEAR commencing on the date of this Agreement" (emphasis added). The contract further states that it "represents the entire agreement" between the parties and "supercedes any prior written or oral representations..." Indemnity contracts must be "strictly construed to avoid reading into them duties which the parties did not intend to be assumed" (Cacanoski v. 35 Cedar Place Assoc., LLC., 147 AD3d 810, 812-13 [2nd Dept. 2017], quoting Mikulski v. Adam R. West, Inc., 78 AD3d 910, 911 [2nd Dept. 2010]). "Therefore, an indemnity contract will not be held to have retroactive effect 'unless by its express words or necessary implication it clearly appears to be the parties' intention to include past obligations'" (id., quoting Kane Mfg. Corp. v. Partridge, 144 AD2d 340, 341 [2nd Dept. 1988]). While it is true that under the common law rule, "review of the course of conduct between the parties to determine whether there was a meeting of the minds sufficient to give rise to an enforceable contract" (see Flores v. Lower E. Side Serv. Ctr., Inc., 4 NY3d at 369-79), in this case, the mere fact that the parties worked together in the past on this project does not raise issues of fact as to whether Dynamic specifically intended to indemnify Spring and/or Apartments for the entire period of time before the April 9, 2014 contract was executed.
Podhaskie v. Seventh Chelsea Assoc., 3 AD3d 361 (1st Dept. 2004) is distinguishable from this matter. In Podhaskie, the written indemnification contract that post-dated the accident by approximately three weeks specifically incorporated all prior contract documents to be read together and deemed cumulative, including a bid proposal that pre-dated the accident. The Appellate Division found that the bid proposal, together with a certificate of insurance and the post-accident contract's language raised issues of fact as to whether the subcontractor intended to indemnify and hold harmless the owner and general contractor for the entire period of the subcontractor's work on the project, and not just from the date the contracts were entered into (3 AD3d at 363). In this case, however, the April 9, 2014 contract unambiguously provides that it binds Dynamic for a one-year period for work done "commencing on the date of this Agreement," and expressly states that it supercedes prior written or oral representations. Spring, moreover, does not point to other specific contractual language allegedly incorporated in the April 9, 2014 agreement - such as the master subcontract between Spring and the general contractor - that would indicate an intention for the agreement to have retroactive effect. The [*4]existence of a certificate of insurance from Dynamic naming Spring as an additional insured fails to raise an issue of fact, as "[a]n agreement to procure insurance is not an agreement to indemnify or hold harmless" (see Kinney v. G.W.Lisk Co., 76 NY2d 215, 218 [1990]). In light of the foregoing, Dynamic is entitled to summary judgment with respect to the third-party causes of action seeking contribution and indemnification.
B. Third Cause of Action - Breach of Contract - Failure to Procure Insurance
Dynamic is also entitled to summary judgment with respect to the causes of action alleging breach of contract for failure to procure insurance. Even assuming that the certificate of insurance and Laffey testimony raise issues of fact as to whether Dynamic orally agreed to procure insurance in favor of Spring and/or Apartments (see New York City Health and Hospitals Corp. v. Construction Force Services, Inc., 123 AD3d 493, 493-94 [1st Dept. 2014]; Morrison -Knudsen Co v. Contintental Cas. Co., 181 AD2d 500, 501 [1st Dept. 1992]), Dynamic established prima facie that it complied with any such agreement, as its moving papers include a commercial general liability insurance policy in effect at the time of the accident which included a blanket additional insured endorsement. This policy establishes that the causes of action for failure to procure insurance is not tenable (see Perez v. Morse Diesel Intl., Inc., 10 AD3d 497, 498 [1st Dept. 2004]).
As noted supra, Spring's contention that there are issues of fact concerning whether the April 9, 2014 contract should be applied retroactively is unavailing. Spring further argues that there are issues of fact as to whether the insurance procured matches the coverage promised. However, Spring provides no admissible evidence establishing precisely what insurance was promised or how the coverage obtained did not satisfy that promise (compare Bachrow v. Turner Constr. Corp., 46 AD3d 388 [1st Dept. 2007]). Mr. Laffey only testified broadly that Dynamic would supply insurance covering "anyone" on the site and cover "if anything happens while they're working on the site," (Laffey EBT-1 at 21, 22). The record demonstrates that Dynamic in fact procured an insurance policy that covered contractually-designated additional insureds. Mr. Laffey's non-specific testimony concerning what coverage he understood that Dynamic would procure fails to raise an issue of fact as to whether this coverage breached the parties' alleged oral agreement to procure insurance. Apartments' opposition papers do not address this branch of the motion.
C. First Cause of Action - Breach of Contract
The first cause of action contained in the third-party complaints alleges that "[p]ursuant to the aforementioned oral and/or written agreement(s), Dynamic agreed to provide certain services relating to construction at 4555 Henry Hudson Parkway, Riverdale, New York. Dynamic breached its agreement to provide adequate services. By reason of the foregoing, Dynamic is liable ... for breach of contract, and is required to reimburse [Spring and Apartments] for all claims, settlements and judgments in this action, as well as all costs, disbursements, and expenses of litigation and attormeys' fees incurred by [Spring and Apartments]" (Third party complaints at Par. 9-12).
Dynamic established its entitlement to dismissal of this cause of action by demonstrating that it is inadequately plead, and constitutes an attempt to obtain indemnification from Dynamic. The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance thereunder, the defendant's breach thereof, and resulting damages" (see [*5]Harris v. Seward Parking Housing Corp., 79 AD3d 425, 426 [1st Dept. 2010]). Furthermore, "the plaintiff's allegations must identify the provisions of the contract that were breached" (Barker v. Time Warner Cable, Inc., 83 AD3d 750, 751 [2nd Dept. 2011]; see also Kraus v. Visa Intl. Serv. Ass'n, 304 AD2d 408 [1st Dept. 2003]). The third party complaints here do not specify what particular contractual provision Dynamic breached. The complaints only state that Dynamic failed to "provide adequate services" which is "too vague and indefinite" to adequately plead a breach of contract cause of action (see Canzona v. Atanasio, 118 AD3d 837, 839 [2nd Dept. 2014]). While Dynamic did not present these specific legal arguments in support of this branch of the motion, "[a] motion for summary judgment, irrespective of by whom made, invites a court... to search the record and to award judgment where appropriate" (see Fertico Belgium S.A. v. Phosphate Chemicals Export Ass'n, Inc., 100 AD2d 165, 171 [1st Dept. 1984], appeal dismissed, 62 NY2d 802 [1984]). In opposition, Spring fails to submit any affidavit explaining what specific contractual provisions were breached or how the breach occurred. Apartments' opposition papers do not address this branch of the motion.
III. Conclusion
Accordingly, it is hereby
ORDERED, that Dynamic's motion for summary judgment is granted, and it is further,
ORDERED, that the third-party complaint and second third-party complaint are both dismissed with prejudice.
This constitutes the Decision and Order of this Court.
Dated: January 19, 2018
Hon. Mary Ann Brigantti, J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
