CHIATTO v. FOUR STATE COMMERCIAL DEVELOPERS LLC LLC (2025)

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about January 11, 2024, which, to the extent appealed from, denied third-party defendant Federal Express Corporation's (FedEx) motion for summary judgment dismissing third-party plaintiff Four State Commercial Developers, LLC d/b/a Bridgetown, LLC's (Four State) claim for contractual indemnification, unanimously affirmed, without costs.

The subject indemnification provision requires FedEx to indemnify Four State against all claims resulting in bodily injury arising from FedEx's use of the property, excluding claims arising from intentional or negligent acts of Four State or its agents, employees, or contractors.  Here, an issue of fact exists as to whether plaintiff's accident arose from FedEx's use of the property.  FedEx failed to preserve its challenge to the admissibility of plaintiff's written statement, which indicated that he “[s]lipped off [the] foot ledge of driver side door while exiting [his FedEx] vehicle” when returning from his delivery route.  We also decline to review it since it is “not [a] purely legal argument[ ] apparent on the face of the record but depend[s] on facts not brought to the parties’ attention below” (Weidtman v. Tremont Renaissance Hous. Dev. Fund Co., Inc., 224 A.D.3d 488, 492, 206 N.Y.S.3d 17 [1st Dept. 2024] [internal quotation marks and brackets omitted]).  Accordingly, plaintiff's written statement may be considered.

However, FedEx preserved its argument that the hospital records are inadmissible hearsay.  Even assuming that the descriptions of the accident in plaintiff's hospital records are inadmissible hearsay, they may be considered in opposition to the motion in conjunction with the other evidence in the record, including plaintiff's written statement and his manager's deposition testimony (see Pina v. Arthur Clinton Hous. Dev. Fund Corp., 188 A.D.3d 614, 615, 132 N.Y.S.3d 753 [1st Dept. 2020]).

FedEx's argument that the indemnification provision is unenforceable based on General Obligations Law § 5–322.1 is unavailing.  The statute applies to contracts related to the construction, alteration, repair, or maintenance of a building or structure and does not apply to the indemnification provision at issue here, which arises from a lease agreement (see Selis v. Town of N. Hempstead, 213 A.D.3d 878, 880, 184 N.Y.S.3d 380 [2d Dept. 2023]).