COOPER v. BLDG 7TH STREET LLC (2024)

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about October 4, 2023, which, to the extent appealed from as limited by the briefs, denied so much of the motion of defendants/third-party plaintiffs BLDG 7th Street, LLC, East 7th Street Ventures LLC and BLDG Management Co., Inc. (collectively BLDG) as was for summary judgment on its third-party claims against third-party defendant Global Pest Control, LLC (Global), and granted Global's cross-motion for summary judgment dismissing the third-party complaint as against it, unanimously modified, on the law, to deny that branch of Global's cross-motion for summary judgment dismissing BLDG's third-party contractual indemnification claim as against it, and otherwise affirmed, without costs.

The first sentence of Global's indemnification agreement with BLDG reads, as relevant here, “To the fullest extent permitted by law, [Global] agrees to indemnify ․ [BLDG] from any and all claims ․ related to ․ personal injuries ․ arising out of or in connection with the performance of the work of [Global] ․”  This has a performance-of-the-work trigger, requiring Global to indemnify BLDG for accidents, like plaintiff's, occurring in the course of its work (see e.g. Estevez v. SLG 100 Park LLC, 215 A.D.3d 566, 570, 189 N.Y.S.3d 53 [1st Dept. 2023];  Pimentel v. DE Frgt. LLC, 205 A.D.3d 591, 593–594, 169 N.Y.S.3d 286 [1st Dept. 2022];  Vargas v. 1166 LLC, 201 A.D.3d 614, 616, 162 N.Y.S.3d 332 [1st Dept. 2022]).  However, the last sentence of the parties’ indemnification agreement reads, “In the event, indemnification will be limited to any liability imposed over the above that percentage attributable to actual fault, whether by statute, by operation of law, or otherwise.”  This sentence is unclear and ambiguous, and we cannot discern its meeting on this record.  Accordingly, issues of fact remain as to the scope of the parties’ indemnification agreement, precluding summary judgment in either party's favor on BLDG's third-party contractual indemnification claim as against Global (see e.g. Saavedra v. 111 John Realty Corp., 179 A.D.3d 442, 115 N.Y.S.3d 303 [1st Dept. 2020];  Stewart Tit. Ins. Co. v. New York Tit. Research Corp., 178 A.D.3d 618, 619, 117 N.Y.S.3d 175 [1st Dept. 2019]).

BLDG's third-party common-law indemnification and contribution claims against Global, plaintiff's employer, were properly dismissed, since plaintiff is not alleged to have sustained a grave injury (see Workers’ Compensation Law § 11;  Hasenzahl v. 44th St. Dev. LLC, 203 A.D.3d 602, 603, 162 N.Y.S.3d 719 [1st Dept. 2022]).

Furthermore, a party moving for summary judgment dismissing a breach of contract claim for failure to procure insurance meets its prima facie burden by identifying the contract provision requiring the procurement of insurance and tendering the procured insurance policy that satisfies that requirement (see McDonnell v. Sandaro Realty, Inc., 165 A.D.3d 1090, 1098, 87 N.Y.S.3d 86 [2d Dept. 2018];  cf.  Benedetto v. Hyatt Corp., 203 A.D.3d 505, 506, 165 N.Y.S.3d 45 [1st Dept. 2022]).  Global did so here by submitting, in support of its cross-motion, the declarations page of its insurance policy identifying policy limits equal to or in excess of those required by its contract with BLDG, which contract BLDG had submitted in support of its motion.  In opposition to Global's prima facie showing, BLDG failed to raise an issue of fact, which it could have done “by submitting, for example, ․ correspondence from [Global's] insurer ․ indicating that [BLDG] was not named as an insured on any policies issued” (Dorset v. 285 Madison Owner LLC, 214 A.D.3d 402, 404, 185 N.Y.S.3d 61 [1st Dept. 2023]).  Instead, its conclusory argument that it was not named as an additional insured on Global's policy is belied by that part of the declarations page which includes, as additional insureds, organizations to whom Global is “obligated by written contract to provide insurance ․”  Accordingly, BLDG's third-party breach of contract claim for failure to procure insurance was properly dismissed as against Global.

We have considered the remaining arguments and find them unavailing.