BENITEZ v. CHURCH OF ST VALENTINE WILLIAMSBRIDGE NEW YORK (2019)

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered September 22, 2015, which, to the extent appealed from as limited by the briefs, denied third-party plaintiff's motion for summary judgment, unanimously affirmed, without costs.

The court correctly denied the claim of St. Valentine Williamsbridge New York (St.Valentine) for contractual indemnification, because it was not included as the named “owner” in the indemnification agreements, and there is no evidence that it was a third-party beneficiary of those same agreements between the tenant and the contractor.  There is nothing in the agreements suggesting that St. Valentine was intended to be a named indemnitee, and St. Valentine failed to establish that it proffered any consideration in order to be considered a party to the agreements (see Holt v. Feigenbaum, 52 N.Y.2d 291, 299, 437 N.Y.S.2d 654, 419 N.E.2d 332 [1981];  LaSalle Natl. Bank v. Ernst & Young, 285 A.D.2d 101, 108–109, 729 N.Y.S.2d 671 [1st Dept. 2001] ).

Moreover, St. Valentine failed to present any facts to support an inference that it was an intended beneficiary of the tenant's agreements with the contractor.  The undisputed records shows that St. Valentine was not an operating parish, it considered itself “out of business,” and it had no employees.

St. Valentine did not know about the construction project, and was not entitled to enforce the indemnification provisions contained in its tenant's agreements with the contractor (Artwear, Inc. v. Hughes, 202 A.D.2d 76, 81, 615 N.Y.S.2d 689 [1st Dept. 1994] ).