ORELLANA v. LLC (2025)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered December 22, 2023, which, insofar as appealed from, denied the motion of defendant/third party plaintiff Reidy Contracting Group, LLC (Reidy) for summary judgment on its contractual indemnity claim against third-party defendant H & L Ironworks Corp. (H & L), unanimously affirmed, with costs.

In the contract between Reidy and H & L, the indemnity clause is triggered by claims arising out of or resulting from performance of the work “to the extent which are directly or indirectly caused or contributed to, or claimed to be caused or contributed to, by any act or omission, fault or negligence, whether passive or active in whole or in part, by [H & L or its subcontractors].”  The motion court correctly denied Reidy's motion, finding that it failed to show that any act or omission by H & L or its subcontractor was connected to the cinderblock that fell and struck plaintiff (see Arias v. Sanitation Salvage Corp., 199 A.D.3d 554, 557, 159 N.Y.S.3d 14 [1st Dept. 2021];  Quinonez v. Manhattan Ford, Lincoln–Mercury, Inc., 62 A.D.3d 495, 497, 879 N.Y.S.2d 110 [1st Dept. 2009]).  While a later phrase in the clause implies that indemnity may be premised on claims merely arising out of the work, that phrase is part of an enumerated list dependent on the terms of indemnity set forth in the first sentence of the clause, and therefore does not modify it.  A contractual obligation to indemnify must be clearly manifested in the parties' agreement, and a contract assuming an obligation to indemnify must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed (see Tonking v. Port Auth. of N.Y. & N.J., 3 N.Y.3d 486, 490, 787 N.Y.S.2d 708, 821 N.E.2d 133 [2004];  Hooper Assoc. v. AGS Computers, Inc., 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989]).