VARGAS v. 622 THIRD AVENUE COMPANY LLC (2024)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered March 30, 2023, which, to the extent appealed from as limited by the briefs, denied third-party defendant John Knopf Flooring, Inc.’s (JK Flooring) motion for summary judgment dismissing all of the contractual indemnification causes of action asserted against it, granted third-party defendant Architectural Flooring Resources, Inc.’s (AFR) motion for summary judgment on its contractual indemnification cause of action against JK Flooring, denied defendant/second third-party defendant J.T. Magen & Company, Inc.’s (JT Magen) motion for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence causes of action against it, defendants Interpublic Group of Companies’ and defendant/third-party plaintiff 622 Third Ave. Company LLC's (622 Third Avenue) causes of action for contractual indemnification against it, all of the common-law indemnification and contribution causes of action against it, and the entirety of the second third-party complaint as against it, denied 622 Third Avenue's motion for summary judgment on its cause of action for contractual indemnification against JK Flooring, and denied AFR's motion for summary judgment dismissing JK Flooring's and JT Magen's cross-claims against it, unanimously modified, on the law, AFR's motion for summary judgment granted to the extent of dismissing the cross-claims asserted against it, and otherwise affirmed, without costs.

This action arises from an incident in which plaintiff allegedly slipped on a puddle of water in a staircase located within 622 Third Avenue.  At the time of the accident, plaintiff was employed by JK Flooring and was at the location to install flooring as part of a renovation project.  Defendant JT Magen was the general contractor for the project.

The court properly denied the summary judgment motion of JT Magen to the extent it sought dismissal of plaintiff's Labor Law § 200 and common-law negligence causes of action.  The record in this case is sufficient to raise a triable issue of fact as to whether JT Magen had, and exercised, control over the manner in which plaintiff performed his work, and could have avoided exposing plaintiff to the unsafe condition which led to his injury (see Hughes v. Tishman Constr. Corp., 40 A.D.3d 305, 306, 836 N.Y.S.2d 86 [1st Dept. 2007];  Miano v. Skyline New Homes Corp., 37 A.D.3d 563, 566, 830 N.Y.S.2d 257 [2d Dept. 2007]).  Plaintiff testified that he was required to report to an employee of JT Magen, that such employee was aware of a wet condition in the staircase and had complained about it earlier in the day, and that the employee specifically instructed plaintiff to use that staircase without warning him of the dangerous condition, in lieu of other means of access to floors to which plaintiff needed to travel.

The court properly denied JT Magen's motion for summary judgment to the extent it sought dismissal of the contractual indemnification causes of action asserted by 622 Third Ave. and Interpublic against it, relying in part on the terms of a contract between JT Magen and an Interpublic subsidiary.  Even assuming JT Magen is correct that the court should have considered the contract, which was not authenticated by the subsidiary (see Clarke v. American Truck & Trailer, Inc., 171 A.D.3d 405, 406, 97 N.Y.S.3d 105 [1st Dept. 2019]), it still was not entitled to summary judgment on the contractual indemnification causes of action.  The indemnification provision in this agreement contained a negligence trigger (see Pressley v. 535 Greenwich LLC, ––– A.D.3d ––––, 220 N.Y.S.3d 287 [1st Dept. 2024]).  In view of the questions of fact as to whether JT Magen was negligent, and whether such negligence caused this injury in whole or in part, JT Magen is not entitled to summary judgment (see e.g. Gomes v. Vornado 640 Fifth Ave. L.L.C., 195 A.D.3d 486, 486, 145 N.Y.S.3d 338 [1st Dept. 2021]).  As for JT Magen's arguments that the remaining third party claims and cross-claims asserted against it should be dismissed because it was not negligent, we find that the questions of fact identified with respect to its negligence preclude summary judgment.

The court properly concluded that JK Flooring was not entitled to summary judgment dismissing the contractual indemnification claims asserted against it.  The indemnity agreement entered into between JK Flooring and AFR was valid and enforceable, notwithstanding the fact that 622 Third Ave., Interpublic and JT Magen are not mentioned by name in the agreement.  The indemnification agreement specifically provides that JK Flooring will indemnify the “owner, owners consultant, the building landlord, and their ․ employees, agents and representatives ․”.  JK Flooring has failed to establish, as a matter of law, that the parties seeking indemnity under that agreement (the owner, the leaseholder and the leaseholder's contractor) do not fall within its terms (cf.  Padron v. Granite Broadway Dev. LLC, 209 A.D.3d 536, 177 N.Y.S.3d 220 [1st Dept. 2022];  see also Ruisech v. Structure Tone Inc., 208 A.D.3d 412, 416–417, 174 N.Y.S.3d 367 [1st Dept. 2022];  lv granted 40 N.Y.3d 908, 2023 WL 8631649 [2023]).

The court also correctly determined that the terms of this indemnification provision do not violate General Obligations Law § 5–322.1 (see Guevara–Ayala v. Trump Palace/Parc LLC, 205 A.D.3d 450, 451–452, 168 N.Y.S.3d 452 [1st Dept. 2022];  Dutton v. Pankow Bldrs., 296 A.D.2d 321, 322, 745 N.Y.S.2d 520 [1st Dept. 2002], lv denied 99 N.Y.2d 511, 760 N.Y.S.2d 102, 790 N.E.2d 276 [2003]).  Furthermore, we reject JK Flooring's contention that the court may look to extrinsic evidence to interpret it.  The agreement applied to all work orders and did not contain an expiration date.  There was no basis to consider extrinsic or parol evidence in the absence of any ambiguity (see generally W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 163, 565 N.Y.S.2d 440, 566 N.E.2d 639 [1990]).

We agree with JK Flooring that this indemnification provision contains a negligence trigger (see Sandoval–Morales v. 164–20 N. Blvd., LLC, 231 A.D.3d 501, 220 N.Y.S.3d 266 [1st Dept. 2024]).  However, JK Flooring failed to establish, as a matter of law, that it was not negligent or that its negligence did not cause this injury, at least in part (Gomes at 486, 145 N.Y.S.3d 338).  For purposes of the contractual indemnification cause of action, plaintiff's own negligence may be imputed to JK Flooring, his employer (see Mercado v. Caithness Long Is., LLC, 104 A.D.3d 576, 578, 961 N.Y.S.2d 424 [1st Dept. 2013]).  Although plaintiff has identified evidence in the record that he was specifically instructed to use the one staircase, there was conflicting evidence suggesting that plaintiff may have used the staircase in violation of his instructions and posted signage.

622 Third Ave. failed to establish its entitlement to summary judgment on its cause of action for contractual indemnification against JK Flooring.  622 Third Ave., the building owner and the sole party alleged to be in charge of maintaining the staircase, pipes, and operating the valves, failed to establish that it is free of any negligence (see generally Cava Constr. Co., Inc. v. Gealtec Remodeling Corp., 58 A.D.3d 660, 662, 871 N.Y.S.2d 654 [2d Dept. 2009]).  Notably, 622 Third Ave. failed to establish either that it did not create the hazardous condition (see Dones v. New York City Hous. Auth., 81 A.D.3d 554, 554, 917 N.Y.S.2d 186 [1st Dept. 2011]), or that it lacked actual or constructive notice of the condition (see Graham v. YMCA of Greater N.Y., 137 A.D.3d 546, 547, 27 N.Y.S.3d 41 [1st Dept. 2016]).

622 Third Ave.’s contention that, as a matter of law, it was not negligent because of its posted signage is unavailing.  Such signage did not convey the hazard to which people entering the staircase may be exposed, and there is no basis to conclude that a water hazard would be a reasonably foreseeable risk inherent in entering a building staircase (see Dakin v. State, 284 App.Div. 53, 56, 130 N.Y.S.2d 39 [3d Dept. 1954];  compare Carol S. v. State of New York, 185 A.D.3d 1385, 128 N.Y.S.3d 376 [4th Dept. 2020]).

In light of the court's finding that AFR established that it was not negligent, the cross-claims asserted against AFR for contribution and common-law indemnification should be dismissed (see Stone v. Williams, 64 N.Y.2d 639, 642, 485 N.Y.S.2d 42, 474 N.E.2d 250 [1984]).  JK Flooring has abandoned its cross-claims against AFR by failing to defend them in this appeal (see Norris v. Innovative Health Sys., Inc., 184 A.D.3d 471, 473, 126 N.Y.S.3d 122 [1st Dept. 2020]).  We further find JT Magen's argument, raised in its reply, that the court did not actually find AFR to be free of negligence, to be unpersuasive.

We have considered the remaining arguments and find them unavailing.