Olivieri v Barnes & Noble, Inc.

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Olivieri v Barnes & Noble, Inc. 2021 NY Slip Op 33002(U) November 12, 2021 Supreme Court, Erie County Docket Number: Index No. 813297/2015 Judge: Diane Y. Devlin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] ERIE COUNTY CLERK 11/15/2021 09:54 AM NYSCEF DOC. NO. 224 INDEX NO. 813297/2015 RECEIVED NYSCEF: 11/29/2021 At a Special Term of the Supreme Court held in and for the County of Erie, State of New York, located at Part 6, Buffalo, NY, on the 14th day of October 2021 PRESENT: HON. DIANE Y. DEVLIN Justice Presiding STATE OF NEW YORK SUPREME COURT: : COUNTY OF ERIE LORI J. OLIVIERI Plaintiff AMENDED DECISION and ORDER -vsIndex No.: 813297/2015 BARNES & NOBLE, INC., and STOLTZ REAL ESTATE PARTNERS Defendants BARNES & NOBLE, INC. Third-Party Plaintiff vs NATIONAL JANITORIAL SOLUTIONS INCORPORATED, ANTHONY CHES TLC CLEANING and ANTHONY CHES INDIVIDUALLY Third-Party Defendants NATIONAL JANITORIAL SOLUTIONS IN CORPORA.TED Second Third-Party Plaintiff vs RJS JANITORIAL, LLC Second Third-Party Defendant 1 of 4 [*FILED: 2] ERIE COUNTY CLERK 11/15/2021 09:54 AM NYSCEF DOC. NO. 224 INDEX NO. 813297/2015 RECEIVED NYSCEF: 11/29/2021 Upon the foregoing papers, it is ordered that the motion is GRANTED and cross motion is DENIED. The following papers were read on this Motion for Summary Judgment and Cross Motion for Swnmary Judgment. Notice of Motion-Affirmation-Exhibits, Docket Numbers 163-189 Notice of Cross Motion-Exhibits, Docket Numbers 191-214 Replying Affirmation-Exhibits, Docket Numbers 215-220 Replying Affirmation, Docket Numbers 221-222 Plaintiff in this action filed a negligence cause of action against Defendant Barnes and Noble as a result of a fall on a reading stage at its store. Barnes and Noble then commenced a Third-Party Complaint against National Janitorial Solutions Inc ("NJS") and Anthony Ches TLC Cleaning and Anthony Ches. National Janitorial Solutions then commenced a Second ThirdParty action against RJS Janitorial ("~RJS") All parties agreed to bifurcate discovery between liability and damages. Plaintiffs Complaint was dismissed by Decision and Order filed January 4, 2021 (incorrectly dated January 4, 2020) following the liability-only discovery. Thereafter Barnes and Noble filed a Motion for Summary Judgment for Contractual Indemnification against NJS. Defendant's motion was granted by Decision and Order filed on March 11, 2021. Third-Party Defendant and Second-Party PlaintiffNJS now files a Motion for Summary Judgment for Contractual Indemnification against RJS. NJS relies on its Master Service Agreement that states that "Contractor shall remain liable for all actions and/or omissions of said Subcontractor." There is general hold harmless language in the agreement. RJS states that it is free from negligence based on affidavits submitted in the litigation. RJS files a Cross Motion for Swnmary Judgment to Dismiss the Second Third-Party 2 of 4 [*FILED: 3] ERIE COUNTY CLERK 11/15/2021 09:54 AM NYSCEF DOC. NO. 224 INDEX NO. 813297/2015 RECEIVED NYSCEF: 11/29/2021 Complaint because Plaintiff's alleged accident did not arise out of any act or omission of its perfonnance. RJS also argues that attorney fees are not authorized by the Master Service Agreement since they are not referenced in it. RJS relies partly on New York State Thruway v Ketco, 195 AD 3d 630 (2d Dept. 2021). The indemnification clause of the Master Service Agreement states that RJS is to hold harmless NJS for all liabilities, claims, actions, lawsuits, demands, costs, losses, damages, and expenses" arising out of acts/omissions of Contractor. RJS states that New York State Thruway v Ketco, supra is authority for dismissal when it has been determined that negligence or plaintiffs injuries do not arise from third-party defendant. However, in that case, a motion for summary judgment that resulted in a dismissal was affirmed by the Second Department. Presently the Decision and Order granting dismissal is pending review before the Fourth Department. RJS also argues that it is not responsible for attorneys' s fees because the hold harmless clause at issue is silent as to attorney's fees. NJS acknowledges that the clause does not mention attorney's fee specifically, but argues that since it references lawsuits, it follows that attorney's fee are related to lawsuits. ·A review of the complete agreement at issue reveals that attorney's foes were contemplated by the parties to the contract in general because attorney's foes are referenced in paragraph 28 relating to the enforcement of the terms of the agreement. In a transaction involving securities sales in which a guaranty agreement only referenced expenses, the Court stated that the language "costs and expenses" was broad enough to be interpreted to encompass attorney's fees. ''Nigri v Liberty Apparel Company. 76 AD 3d 842 ( 1si Dept. 20 I 0). The Court GRANTS Third-Party Defendant NJS's Motion for Summary Judgment 3 of 4 [*FILED: 4] ERIE COUNTY CLERK 11/15/2021 09:54 AM NYSCEF DOC. NO. 224 INDEX NO. 813297/2015 RECEIVED NYSCEF: 11/29/2021 subject to an INQUEST on damages and DENIES Second Third-Party Defendant RJS's Cross Motion to Dismiss. DIANE Y. DEVLIN, J.S.C. DATED: November 12, 2021 4 of 4

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