LATIFAJ v. << (2026)

. 151609/17 595414/18 595651/19

Sobo & Sobo L.L.P., Middletown (John A. Del Duco III of counsel), for Akile Latifaj, respondent.

Fleischner Potash LLP, New York (Karl Eschelbach of counsel), for 1251 Americas Associates LP and Mitsui Fudosan America Inc., respondents.

Jeffrey Samel & Partners, New York (Robert G. Spevack of counsel), for ABM Security Services, Inc. and ABM Onsite Services, Inc., respondents.

Order, Supreme Court, New York County (Lori S. Sattler, J.), entered March 5, 2025, which, to the extent appealed from as limited by the briefs, granted the motion of second third-party defendants ABM Security Services, Inc., and ABM Onsite Services, Inc. for contractual indemnification against second third-party defendants Universal Protection Service, L.P., Universal Services of America, L.P., and Universal Protection GP, LLC (collectively, Universal), and denied Universal's motion for summary judgment dismissing all cross-claims as against it, unanimously modified, on the law, to grant Universal's motion solely to the extent of dismissing ABM Security and ABM Onsite's cross-claim for contribution, and otherwise affirmed, without costs.

Plaintiff alleges that on January 15, 2016, she tripped and fell over the leg of a metal barricade in the exterior pedestrian plaza of a building at 1251 Avenue of the Americas in Manhattan.  The property was owned by defendant/third-party plaintiff and second third-party plaintiff 1251 Americas Associates, LP, a subsidiary of defendant/third-party plaintiff and second third-party plaintiff Mitsui Fudosan America, Inc. (together, Americas Associates), which retained ABM Security and ABM Onsite to provide services.  At the time of the underlying incident, ABM Security and ABM Onsite were providing security for the property under a master building services agreement with Americas Associates.  About three months before the incident, ABM Onsite and Universal entered into an Asset Purchase Agreement under which Universal bought the “Security Business” and the security contract for the property.

ABM Security and ABM Onsite established their entitlement to summary judgment on their cross-claim for contractual indemnification against Universal by submitting the Asset Purchase Agreement.  Under Delaware Law, which governs the agreements at issue, an agreement indemnifying a contractor against the results of its own negligence is valid (see Powell v. Interstate Vendaway, Inc., 300 A.2d 241, 243 [Del Super 1972] ).  However, Delaware law also provides that the indemnity language “must be crystal clear and unequivocal in requiring the contractor to assume all liability for damage claims, [regardless of] whichever party may have been guilty of the negligence which actually caused the injury” (State v. Interstate Amiesite Corp., 297 A.2d 41, 44 [Del 1972] ).  Thus, indemnity provisions in the relevant agreement must be strictly construed (see Winshall v. Viacom Intern., Inc., 76 A3d 808, 824 n 42 [Del 2013] ).

Under a strict construction of the indemnification provision in the Asset Purchase Agreement, Universal assumed liability for the incident to the extent that it arose “out of or resulted from the operation or conduct of the Security Business,” even if the security guards were still employed by ABM Security and ABM Onsite when the incident occurred.  The record shows that about seven hours before plaintiff tripped and fell, the building property manager told ABM Security to place barricades on the plaza as a precaution because ice was falling off the building.  Universal's contention that its contractual obligations were never triggered because the placement of barricades on the plaza was outside the scope of the master building services agreement is contradicted by the terms of that agreement, which states that its purpose was to “provide unarmed guard service/access control” and “other related life safety duties” for the property.  Placing barricades to prevent pedestrians on the plaza from being struck with ice falls within ABM Security's responsibility of controlling access to the property and constitutes a “safety duty.”

The Transition Services Agreement, which ABM Onsite and Universal signed on the same day as the Asset Purchase Agreement, and which was in effect when the incident occurred, does not compel a different result.  The Transition Services Agreement states that Universal was “assuming the Assumed Liabilities ․ in accordance with the terms and conditions of the Asset Purchase Agreement,” which controlled in the event of any conflict.  Furthermore, section 8.1 of the Transition Services Agreement provides that Universal was to indemnify ABM Onsite from, among other things, liabilities, awards, judgments, and damages arising out of or resulting from its performance of the services, and that there was no material breach if it “resulted primarily from a departure by employees necessary to perform the relevant service.”  Such a situation is presented here, as the placement of the barricades arose out of or resulted from ABM Onsite's performance of a service.

Although the burden on the motion shifted to Universal, its submissions failed to raise an issue of fact as to whether it assumed liability for the security business (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ).

We reject Universal's assertion that ABM Security and ABM Onsite did not move for summary judgment on their cross-claim for contractual indemnity, and that Supreme Court therefore should not have granted them that relief.  ABM Security and ABM Onsite's notice of motion stated that they sought an order under CPLR 3212, and Universal submitted opposition arguing that they were not entitled to summary judgment on their cross-claims (see CPLR 2214[a] ).  Thus, any irregularity in the notice of motion did not result in prejudice to Universal (see Fifth & Fifty–Fifth Residence Club Assn., Inc. v Vistana Signature Experiences, Inc., 217 AD3d 564, 565 [1st Dept 2023] ).

Moreover, we reject Universal's assertion that Espinal v. Melville Snow Contrs.  (98 N.Y.2d 136 [2002] ), which held that “a defendant who undertakes to render services and then negligently creates or exacerbates a dangerous condition may be liable for any resulting injury” (id. at 141–142), does not apply to the incident.  On the contrary, as noted above, the record shows that ABM Security placed the barricade before plaintiff fell.

Universal also failed to establish prima facie that the leg of the barricade that caught plaintiff's foot was an open and obvious condition that was readily observable by anyone employing the reasonable use of their senses, and was not inherently dangerous (see Castro v Village Super Mkt. of NY, LLC, 211 AD3d 506, 506 [1st Dept 2022];  Moss v. Westside Supermarket LLC, 198 AD3d 461, 462 [1st Dept 2021] ).  The photograph marked Exhibit D, which is a photograph of the barricade, does not allow a determination as a matter of law regarding the barricade leg, as plaintiff testified that the photograph showed a similar barricade, not the one that caused her accident (see Carter v HP Lafayette Boynton Hous. Dev. Fund Co., Inc., 210 AD3d 580, 581 [1st Dept 2022] ).  Plaintiff also testified that she did not see the barricade leg before she fell.

Contrary to Universal's assertion, Supreme Court did not overlook plaintiff's deposition testimony that she was rushing to catch a train when the accident happened.  In any event, that testimony does not change our determination, as plaintiff's comparative negligence, if any, would merely diminish her recovery in proportion to the defendants' culpable conduct (see CPLR 1411).

However, in light of Supreme Court's finding that Universal was free from negligence as a matter of law because it was not present at the site and exercised no supervisory control at the time of the incident, the court should have granted Universal's motion to the extent of dismissing ABM Security and ABM Onsite's cross-claim for contribution as against Universal (see Vargas v. 622 Third Ave. Co. LLC, 233 AD3d 522, 526 [1st Dept 2024] ).

We have considered the remaining contentions and find them unavailing.