VIVAR v. KEY FOOD STORES CO OPERATIVE INC LLC 870 RBR LLC (2023)

Upon the E-file document list numbered 42 to 59, 63 to 84, and 88 to 91 read and considered on the motion by defendants Key Food Stores Co-operative, Inc. and 870 Middle Island Produce Corp. for an order pursuant to CPLR 3212 granting summary judgment in favor of defendant Key Food Stores Co-operative, Inc. and against the plaintiff and dismissing the complaint together with any and all cross-claims asserted against it based upon the grounds that defendant Key Food Stores, Co-operative, Inc. did not own, possess, control, make special use of, or undertake any responsibility for the maintenance and repair of the area where plaintiff allegedly fell, and based upon the fact that defendant Key Food Stores Co-operative, Inc. did not enter into any agreements with any of the parties named in this action to maintain or repair the area where plaintiff alleges his accident occurred and for an order pursuant to CPLR 3212 granting partial summary judgment in favor of defendant 870 Middle Island Produce Corp. dismissing the plaintiff's complaint in its entirety, along with the cross-claims of Confer RBR, LLC and Melville Snow Contractors, Inc. and the cross-claims of defendant Middle Island Plaza, LLC for common law contribution and indemnity based upon the grounds that the plaintiff's direct action and co-defendants’ cross-claims for common law contribution and indemnity are barred by the exclusive remedy doctrine of the Workers’ Compensation Law, and on the cross-motion by defendant Middle Island Plaza, LLC for an order pursuant to CPLR 3212 granting it summary judgment on its cross-claim for contractual indemnification as against defendant 870 Middle Island Produce Corp. based upon a lease agreement containing an indemnification clause in favor of defendant Middle Island Plaza, as the landlord for the premises and as against the tenant of the property where plaintiff's accident is alleged to have occurred during his employment; it is

ORDERED that the motion by defendants Key Food Stores Co-operative, Inc. and 870 Middle Island Produce Corp. for an order pursuant to CPLR 3212 granting summary judgment in favor of defendant Key Food Stores Co-operative, Inc. and against the plaintiff and dismissing the complaint together with any and all cross-claims asserted against defendant Key Food Stores Co-operative, Inc. based upon the grounds that defendant Key Food Stores Co-operative, Inc. did not own, possess, control, make special use of, or undertake any responsibility for the maintenance and repair of the area where plaintiff allegedly fell, and based upon the fact that defendant Key Food Stores, Co-operative, Inc. did not enter into any agreements with any of the parties named in this action to maintain or repair the area where plaintiff alleges his accident occurred and for an order pursuant to CPLR 3212 granting partial summary judgment in favor of defendant 870 Middle Island Produce Corp. dismissing the plaintiff's complaint in its entirety, along with the cross-claims of Confer RBR, LLC and Melville Snow Contractors, Inc. and the cross-claims of defendant Middle Island Plaza, LLC for common law contribution and indemnity based upon the grounds that the plaintiff's direct action and co-defendants’ cross-claims for common law contribution and indemnity are barred by the exclusive remedy doctrine of the Workers’ Compensation Law, are granted for the reasons set forth herein; and it is further

ORDERED that the cross-motion by defendant Middle Island Plaza, LLC for an order pursuant to CPLR 3212 granting summary judgment seeking contractual indemnification against defendant 870 Middle Island Produce Corp. based upon a lease agreement containing an indemnification clause in favor of defendant Middle Island Plaza, as the landlord for the premises and the tenant where plaintiff's accident is alleged to have occurred during his employment, is denied, for the reasons set forth herein.

This is a premises liability action brought by plaintiff seeking damages for an alleged slip and fall on ice and snow on a loading/receiving platform (“the accident site”) at 868 Middle Island Road, Middle Island, New York (“the subject premises”) on February 14, 2019. Plaintiff commenced this action by filing a summons and complaint on February 16, 2021. An amended complaint was filed on May 26, 2021 (the “complaint”). Issue was joined by defendant Middle Island Plaza, LLC (“Middle Island”) by answer dated June 10, 2021, which includes cross-claims for indemnification against co-defendants Key Food Stores Co-operative, Inc. (“Key Food”), 870 Middle Island Produce Corp. (“870 MIP”), Confer RBR, LLC (“Confer”) and Melville Snow Contractors, Inc. (“Melville”). Issue was joined by defendants Key Food and 870 MIP by answer dated September 9, 2021, which includes cross-claims against the co-defendants for contribution and indemnification. Issue was joined by defendants Confer and Melville by answer dated September 20, 2021, which includes a cross-claim against the co-defendants for contribution and common law and/or contractual indemnification. All defendants served and filed replies to the respective cross-claims.

Defendants Key Food and 870 MIP now move for an order pursuant to CPLR 3212 granting summary judgment in favor of defendant Key Food Stores Co-operative, Inc. and against the plaintiff seeking dismissal of the complaint together with any and all cross-claims asserted against defendant Key Food on the grounds that defendant Key Food did not own, possess, control, make special use of, or undertake any responsibility for the maintenance and repair of the area where plaintiff allegedly fell, and because defendant Key Food did not enter into any agreements with any of the parties named in this action to maintain or repair the accident site. Defendant 870 MIP seeks an order pursuant to CPLR 3212 granting it partial summary judgment dismissing the plaintiff's complaint in its entirety, along with the cross-claims of Confer and Melville and the cross-claims of defendant Middle Island for common law contribution and indemnity based upon the grounds that plaintiff's direct action and co-defendants’ cross-claims for common law contribution and indemnity are barred by the exclusive remedy doctrine of the Workers’ Compensation Law. In support of their motion, defendants Key Food and 870 MIP submit, inter alia, a statement of material facts, an attorney affirmation, the pleadings, the sworn affidavit of Paul Gelardi (“Gelardi”), director of contracts, compliance and logistics for defendant Key Food, the sworn affidavit of Joseph Liriano (“Liriano”), manager of defendant 870 MIP, an August 11, 2020 decision from the Workers’ Compensation Board in favor of plaintiff and against defendant 870 MIP, as employer concerning the accident on February 14, 2019, and plaintiff's deposition transcript dated December 5, 2022.

Defendants Confer and Melville oppose the motion and submit, inter alia, a response to the moving defendants’ statement of facts, an attorney affirmation and a worker's compensation C-3 claim form. Defendants Confer and Melville assert that plaintiff's deposition is incomplete and that no other depositions have taken place. Defendants Confer and Melville further argue that questions of fact remain as to whether defendant Key Food or defendant 870 MIP had control over the premises and whether defendant Key Food or defendant 870 MIP was plaintiff's employer at the time of the alleged accident. Defendants Key Food and 870 MIP reply to the opposition of defendants Confer and Melville asserting that defendant Middle Island admits ownership of the subject premises, that defendant 870 MIP admits it leased the premises and undertook responsibility to maintain and repair the accident site, and defendant 870 MIP admits that it employed plaintiff. Defendants Key Food and 870 MIP further reference plaintiff's bill of particulars, wherein plaintiff admits that he was employed by defendant 870 MIP at the time of the accident, as well as the Workers’ Compensation Board award in favor of plaintiff and against defendant 870 MIP, as plaintiff's employer.

Plaintiff also opposes the motion by defendant Key Food and 870 MIP and submits an attorney affirmation.¹ Plaintiff alleges that defendants Key Food and 870 MIP have failed to produce admissible evidence as to their duties and responsibilities relative to the accident site. As to defendant Key Food, plaintiff asserts it failed to produce evidence that it did not maintain and/or repair the accident site. Plaintiff further asserts that defendants Key Food and 870 MIP have “failed to produce a witness with knowledge of the grocery store's operations for a deposition to affirmatively state that a special use was not made to the [accident site].” In this regard, plaintiff further argues that summary judgment is premature. Defendants Key Food and 870 MIP reply to plaintiff's opposition asserting, inter alia, that defendant 870 MIP, through its manager Liriano, admits that defendant 870 MIP operated and directed the maintenance and/or repairs to the accident site. Further, defendant 870 MIP reiterates that plaintiff's direct claims against defendant 870 MIP are barred by the Workers’ Compensation Law, which provides plaintiff with his exclusive remedy against defendant 870 MIP, his employer at the time of the accident.

Defendant Middle Island does not oppose the motion by defendants Key Food and 870 MIP but instead cross moves for an order pursuant to CPLR 3212 granting it summary judgment on its contractual indemnification cross-claim against defendant 870 MIP based upon a lease agreement.² In support of its motion, defendant Middle Island submits, inter alia, a statement of material facts, an attorney affirmation, and a copy of the lease agreement. Defendant Middle Island, as the landlord for the subject premises, argues that the lease agreement requires defendant 870 MIP, as the tenant under the lease, to indemnify it for the claims asserted by plaintiff, which are alleged to have occurred at the subject premises during the course of his employment. Defendant Middle Island argues that the lease provides that the tenant is responsible to maintain the premises and to “indemnify Owner and save it harmless from and against any and all claims, actions, damages, liability and expense in connection with the loss of life, personal injury and/or damage to property arising from or out of any occurrence in, upon or at the Leased Premises or any part thereof, or occasioned wholly or in party by any [act]³ or omission of Tenant, its agents, contractors, employees, servants, lessees or concessionaires.” Defendant Middle Island argues that it is entitled to indemnification based upon this lease language and the admissions by defendant 870 MIP that it leased the premises and agreed to maintain and repair the accident site. Defendant Middle Island further argues that the alleged accident occurred on the leased portion of the subject premises as shown in the lease agreement.

Defendant 870 MIP opposes this motion arguing, inter alia, that no admissible evidence has been proffered to establish that the indemnification provision in the lease agreement falls within an exception to Workers’ Compensation Law § 11 such that defendant 870 MIP should remain a party to this action. Defendant 870 MIP further argues that it is not a signatory to the lease agreement and there is no admissible evidence as to the assignment of the lease agreement or that defendant 870 MIP “agreed to waive the protections of the exclusive remedy doctrine of the Workers’ Compensation Law.” Defendants Confer and Melville oppose to the extent that defendant Middle Island seeks dismissal of the complaint and all cross-claims asserted against it and in this regard, defendants Confer and Melville argue that summary judgment in favor of defendant Middle Island is premature. However, the notice of motion filed by defendant Middle Island does not seek dismissal of the complaint nor the cross-claims of Confer and Melville and thus, the Court does not interpret the moving papers of defendant Middle Island as seeking such relief. Indeed, the arguments of defendant Middle Island relate only to the indemnification language of the lease agreement. Plaintiff also opposes this motion asserting, inter alia, that summary judgment in favor of defendant Middle Island is premature, that there is no admissible evidence that defendant 870 MIP assumed the contractual indemnification provision of the lease agreement and, furthermore, that irrespective of the lease language, defendant Middle Island had an affirmative duty as the owner of the subject premises to ensure the premises were maintained in a reasonably safe condition. Defendant Middle Island replies and acknowledges that while it is not moving to dismiss plaintiff's complaint, plaintiff does not deny the facts as set forth in the statement submitted by defendant Middle Island. Defendant Middle Island further asserts that discovery on this issue is not necessary, as the lease language and the admissions made by defendant 870 MIP that it operated the subject premises under the lease agreement mandate summary judgment in favor of defendant Middle Island on its cross-claim for contractual indemnification as against defendant 870 MIP. Defendant Middle Island further asserts that through a series of assignments, defendant 870 MIP assumed all obligations under the lease agreement by assignment dated October 1, 2016.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923, 925 [1986]). Failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316, 318 [1985]). Once a prima facie showing has been made, the burden shifts to the party opposing the summary judgment motion to produce evidence sufficient to establish the existence of a material issue of fact (see Alvarez v Prospect Hosp., supra). However, conclusory allegations unsupported by competent evidence are insufficient to defeat a summary judgment motion (Alvarez, supra, 68 NY2d at 324-325, 508 NYS2d 923). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (see Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 339, 937 NYS2d 157 [2011]; S.J. Capelin Assoc., Inc. v Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478 [1974]; Benincasa v Garrubbo, 141 AD2d 636, 637, 529 NYS2d 797, 799 [2d Dept 1988]).

To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries (see Pulka v Edelman, 40 NY2d 781, 390 NYS2d 393 [1976]; see also Schindler v Ahearn, 69 AD3d 837, 894 NYS2d 462 [2d Dept 2010]; Engelhart v County of Orange, 16 AD3d 369, 790 NYS2d 704 [2d Dept 2005], lv denied 5 NY3d 704, 801 NYS2d 1 [2005]; Elliot v Long Is. Home, LTD, 12 AD3d 481, 784 NYS2d 615 [2d Dept 2004]). In the absence of duty, there is no breach and without a breach there is no liability (Pulka v Edelman, supra; Cadet v James B. Nutter & Co., 133 AD3d 561, 562, 19 NYS3d 307 [2d Dept 2015]; Miglino v Bally Total Fitness of Greater NY, Inc., 92 AD3d 148, 937 NYS2d 63 [2d Dept 2011]; Schindler v Ahearn, supra).

Defendant Key Food established its prima facie entitlement to summary judgment through the submission of admissible evidence, including two sworn affidavits. Plaintiff did not include a response to the statement of facts submitted on behalf of defendants Key Food and 870 MIP. As such, the Court deems plaintiff to have admitted all of the statements contained in the moving defendants’ statement of facts including that he was employed by defendant 870 MIP at the time of the accident, that the accident occurred during the course of his employment, that he has not alleged a “grave injury” as defined by section 11 of the Workers’ Compensation Law, that defendant Key Food did not own the subject premises, that defendant Key Food did not lease, possess or otherwise occupy the subject premises on the date of the accident, and that defendant Key Food never employed plaintiff (see 22 NYCRR 202.8-g [b] and [e]). While plaintiff asserts in opposition to this motion that it is “unclear” whether his former employer at the time of the accident was defendant Key Food or defendant 870 MIP, plaintiff's bill of particulars alleges that he was employed by defendant 870 MIP. Plaintiff did not submit his own sworn affidavit on these issues nor has he filed an amended or supplemental bill of particulars in this regard. Furthermore, the Workers’ Compensation Board issued an award against defendant 870 MIP, as the employer, not defendant Key Food. Therefore, regardless of plaintiff's failure to include a counter statement of material facts regarding this point, plaintiff has not raised a triable issue of fact through the production of any admissible evidence (see Velazquez-Guadalupe v Ideal Bldrs. & Constr. Servs., Inc.,216 AD3d 63, 73-74, 188 NYS3d 537 [2d Dept 2023][“controversies regarding the applicability of the Workers’ Compensation Law rest within the primary jurisdiction of the Workers’ Compensation Board, including issues as to the existence of an employer-employee relationship”]). Further, the sworn affidavit of Joseph Liriano, which has not been disputed or refuted by any admissible evidence, establishes that on the date of the accident, defendant Key Food “acted solely as supplier for a cooperative of private supermarket owners, which allowed the members of [the] cooperative to do business under the Key Food name.” There is no evidence that Key Food was the owner, operator, or possessor of the subject premises. Indeed, all of the evidence before this Court establishes that on the date of the accident, defendant 870 MIP was the tenant and operator of the subject premises, as well as the employer of plaintiff, and that defendant Middle Island was the owner of the subject premises. In the absence of any evidence raising a question of fact as to a duty of care owed by defendant Key Food to plaintiff, defendant Key Food is entitled to summary judgment dismissing the complaint.

Through its submissions, including the sworn affidavits of Gelardi and Liriano, defendant Key Food also established its prima facie entitlement to summary judgment dismissing the cross-claims for common law indemnification and contractual indemnification. Defendants have not raised any triable issues of fact in opposition and the Court rejects the argument that the motion is premature because discovery is necessary (see Chong Fu Huang v 57-63 Greene Realty, LLC,174 AD3d 777, 778, 107 NYS3d 118 [2d Dept 2019] citing Ascenio v Briarcrest at Macy Manor, LLC, 60 AD3d 606, 874 NYS2d 562 [2d Dept 2009]). Defendants fail to adequately demonstrate how discovery might lead to relevant evidence or that facts essential to justify opposition to the motion are exclusively within the knowledge or control of defendant Key Food (see CPLR 3212 (f); Williams v Spencer-Hall, 113 AD3d 759, 979 NYS2d 157 [2d Dept 2014]; Cajas-Romero v Ward, 106 AD3d 850, 965 NYS2d 559 [2d Dept 2013]; Romero v Greve, 100 AD3d 617, 953NYS2d 296 [2d Dept 2012]). Indeed, “mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” (Cajas-Romero v Ward, supra, 106 AD3d at 852; see also Niyazov v Hunter EMS, Inc.,154 AD3d 954, 63 NYS3d 457 [2d Dept. 2017]). Under these circumstances, a denial of summary judgment as premature is unwarranted (see Chong Fu Huang v 57-63 Greene Realty, LLC, supra; Huai Qiange Ye v Yepes, 208 AD3d 646, 174 NYS3d 75 [2d Dept 2022]; Sapienza v Harrison,191 AD3d 1028, 142 NYS3d 584 [2d Dept 2021];Hewitt v Gordon-Fleetwood,163 AD3d 536, 79 NYS3d 641 [2d Dept 2018]).

Defendant 870 MIP also established its prima facie entitlement to summary judgment dismissing the direct claims asserted by plaintiff, as workers’ compensation benefits are plaintiff's sole and exclusive remedy as against his employer, defendant 870 MIP (see Workers’ Compensation Law §§ 11 and 29; Weiner v City of New York,19 NY3d 852, 947 NYS2d 404 [2012]; Gonzales v Armac Indus., 81 NY2d 1, 595 NYS2d 360 [1993]; Paguay v Cup of Tea, LLC, 165 AD3d 964, 86 NYS3d 584 [2d Dept 2018]; Vargas v Crown Container Co, Inc.,114 AD3d 762, 980 NYS2d 500 [2d Dept 2014]; Williams v Brentwood Wholesale,261 AD2d 470, 688 NYS2d 894 [2d Dept 1999]). Plaintiff admits in his bill of particulars that defendant 870 MIP was his employer at the time of the accident and plaintiff failed to refute the statement of facts submitted by defendant 870 MIP, including therein, the statement that plaintiff was an employee of defendant 870 MIP. Further, the Workers’ Compensation Board issued an award against defendant 870 MIP, naming it as plaintiff's employer, which is dispositive of this issue (see Velazquez -Guadalupe v Ideal Bldrs. & Constr. Servs., Inc.,216 AD3d 63, 188 NYS3d 537 [2d Dept 2023]). Plaintiff has otherwise failed to raise a triable issue of fact in opposition.

In addition, defendant 870 MIP established its prima facie entitlement to dismissal of the cross-claims for common law indemnification alleged by the co-defendants, inasmuch as there is no allegation that plaintiff suffered a “grave injury”, which is the only exception to the Workers’ Compensation exclusive remedy applicable to these common law indemnification cross-claims (see Workers’ Compensation Law § 11; Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427, 805 NYS2d 299 [2005]; Velazquez -Guadalupe v Ideal Bldrs. & Constr. Servs., Inc.,216 AD3d 63, 188 NYS3d 537 [2d Dept 2023][employer entitled to summary judgment dismissing common law indemnification cross-claims where plaintiff has not alleged a grave injury]; Cassese v SVJ Joralemon, LLC, 168 AD3d 667, 92 NYS3d 127 [2d Dept 2019]; Martelle v City of New York,31 AD3d 400, 817 NYS2d 504 [2d Dept 2006]). In opposition, defendants fail to raise a triable issue of fact and the arguments made by the respective co-defendants that the motion is premature in the absence of further discovery are rejected.

On the motion by defendant Middle Island for summary judgment on its contractual indemnification claim against defendant 870 MIP, a review of the subject lease and related lease documents is required. In determining the rights and obligations of the parties to a contract, it is well-established that “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield v Philles Records98 NY2d 562, 569, 750 NYS2d 565 [2002]; R/S Assoc. v NY Job Dev Auth., 98 NY2d 29, 32, 744 NYS2d 358 [2002]). “In construing a contract, one of a court's goals is to avoid an interpretation that would leave contractual clauses meaningless” (Two Guys from Harrison-N.Y. v S.F.R. Realty Assoc., 63 NY2d 396, 403, 482 NYS2d 465, 468 [1984]). The aim of the court when interpreting a contract is to arrive at a construction that gives fair meaning to all of its terms and provisions, and to reach a “practical interpretation of the expressions of the parties so that their reasonable expectations will be realized” (see Pellot v Pellot, 305 AD2d 478, 759 NYS2d 494 [2d Dept 2003]; Gonzalez v Norrito, 256 AD2d 440, 682 NYS2d 100 [2d Dept 1998]; Joseph v Creek & Pines, Ltd., 217 AD2d 534, 535, 629 NYS2d 75 [2d Dept], lv denied 89 NY2d 804, 653 NYS2d 543 [1996]; see also Matter of Matco-Norca, Inc., 22 AD3d 495, 802 NYS2d 707 [2d Dept 2005]; Tikotzky v City of New York, 286 AD2d 493, 729 NYS2d 525 [2d Dept 2001]; Partrick v Guarniere, 204 AD2d 702, 612 NYS2d 630 [2d Dept], lv denied 84 NY2d 810, 621 NYS2d 519 [1994]). “If the language of the agreement is free from ambiguity, its meaning may be determined as a matter of law on the basis of the writing alone without resort to extrinsic evidence” (Salerno v Odoardi, 41 AD3d 574, 575, 838 NYS2d 156 [2d Dept 2007]). As it is a question of law whether or not a contract is ambiguous (W. W. W. Assoc. v Giancontieri, 77 NY2d 157, 565 NYS2d 440 [1990]), a court must first determine whether the agreement at issue on its face is reasonably susceptible to more than one interpretation (see Chimart Assoc. v Paul, 66 NY2d 570, 498 NYS2d 344 [1986]). When a contract term or clause is ambiguous, and the determination of the parties’ intent depends on the credibility of extrinsic evidence or a choice among inferences to be drawn from extrinsic evidence, then the interpretation of such language is a matter for trial (see Ashland Management v Janien, 82 NY2d 395, 401-402, 604 NYS2d 912 [1993]; Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880, 498 NYS2d 760 [1985]; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290-91, 344 NYS2d 925 [1973]; Brook Shopping Ctr.s v Allied Stores Gen. Real Estate Co., 165 AD2d 854, 560 NYS2d 317 [2d Dept 1990]). It is well established that any ambiguity in a contract is to be construed against the drafter (see Guardian Life Ins. Co. of Am. v Schaefer, 70 NY2d 888, 524 NYS2d 377 [1987]).

The right to contractual indemnification depends upon the specific language of the contract between the parties (see Sovereign Bank v Biagioni, 115 AD3d 847, 982 NYS2d 322 [2d Dept 2014]; Kielty v AJS Constr. of L.I., Inc., 83 AD3d 1004, 922 NYS2d 467 [2d Dept 2011]; Bellefleur v Newark Beth Israel Med. Ctr., 66 AD3d 807, 888 NYS2d 81 [2d Dept 2009]; Kader v City of NY. Hour. Preserv. & Dev., 16 AD3d 461, 791 NYS2d 634 [2d Dept 2005]; Gillmore v Duke/Fluor Daniel, 221 AD2d 938, 939, 634 NYS2d 588 [4th Dept 1995]) and indemnification provisions are “strictly construed” (Davis v Catsimatidis, 129 AD3d 766, 768, 12 NYS3d 141 [2d Dept 2015]). Thus, “[t]he promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances” (Shaughnessy v Huntington Hosp. Assn., 147 AD3d 994, 999-1000, 47 NYS3d 121 [2d Dept 2017] [internal quotation marks and citations omitted]; LaRosa v Internap Network Servs. Corp., 83 AD3d 905, 921 NYS2d 294 [2d Dept 2011] quoting George v Marshalls of MA, Inc., 61 AD3d 925, 930. 878 NYS2d 143 [2d Dept 2009]; see also Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 521 NYS2d 216 [1987]; Blank Rome, LLP v Parrish, 92 AD3d 444, 938 NYS2d 284 [1st Dept 2012]; Torres v LPE Land Dev. & Constr. Inc., 54 AD3d 668, 863 NYS2d 477 [2d Dept 2008]; Canela v TLH 140 Perry St., 47 AD3d 743, 849 NYS2d 658 [2d Dept 2008]).

“When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” (Hooper Assoc. v AGS Computers, 74 NY2d 487, 491, 549 NYS2d 365 [1989]; see Heimbach v Metropolitan Transp. Auth., 75 NY2d 387, 553 NYS2d 653 [1990]). Stated differently, “[t]he language of an indemnity provision should be construed so as to encompass only that loss and damage which reasonably appear to have been within the intent of the parties. It should not be extended to include damages which are neither expressly within its terms nor of such character that it is reasonable to infer that they were intended to be covered under the contract” (Niagra Frontier Trans. Auth. v Tri-Delta Constr. Corp., 107 AD2d 450, 453, 487 NYS2d 428 [4th Dept], affd 65 NY2d 1038, 494 NYS2d 695 [1985]).

“Workers’ Compensation Law § 11 prohibits third-party indemnification or contribution claims against employers, except where the employee sustained a ‘grave injury,’ or the claim is ‘based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered’ ” (Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427, 429-430, 805 NYS2d 299 [2005]; see also Velazquez -Guadalupe v Ideal Bldrs. & Constr. Servs., Inc.,216 AD3d 63, 188 NYS3d 537 [2d Dept 2023]). Indeed, the Second Department recently held “that Workers’ Compensation Law § 11 precludes recovery by any third party for contribution and indemnity against an entity determined by the [Workers’ Compensation Board] to be the plaintiff's employer except where the injured employee has suffered a grave injury or where the employer has expressly agreed in writing to contribute or indemnify” (Velazquez -Guadalupe v Ideal Bldrs. & Constr. Servs., Inc., 216 AD3d at 72, 188 NYS3d at 544). Here, defendant Middle Island must establish, as a matter of law, that the lease agreement entitled it to indemnity under Workers’ Compensation Law § 11. This determination requires a two-part analysis. “First, we consider whether the parties entered into a written contract containing an indemnity provision applicable to the site or job where the injury giving rise to the indemnity took place. Second, if so, we examine whether the indemnity provision was sufficiently particular to meet the requirements of section 11” (Rodriguez v N& S Bldg. Contrs., Inc.,5 NY3d at 432, 805 NYS2d 299).

In this matter, the lease agreement dated May 6, 2004 ⁴ , was entered into between defendant Middle Island as landlord and 870 Meat Corp. as tenant, and was eventually assigned to defendant 870 MIP, as the tenant, by assignment dated October 1, 2016. The lease at paragraph 10.03 entitled “Indemnification of Owner,” provides as follows:

Tenant will indemnify Owner and save it harmless from and against any and all claims, actions, damages, liability and expenses in connection with loss of life, personal injury and/or damage to property arising from or out of any occurrence in, upon or at the Leased Premises or any part thereof, or occasioned wholly or in part by any [act] or omission of Tenant, its agents, contractors, employees, servants, lessees or concessionaires. In case Owner shall be made a party to any litigation commenced by or against Tenant, then Tenant shall protect and hold Owner harmless and shall pay all costs, expenses and reasonable attorney's fees incurred or paid by Owner in connection with such litigation, except with respect to Owner's neglect.

The assignment between 870 Produce Corp., as Assignor, and defendant 870 MIP, as Assignee, dated October 1, 2016 includes a provision that states “Assignee agrees to pay the rent promptly and perform all of the terms of the Lease as of the date of this Assignment. Assignee assumes full responsibility for the Lease as if Assignee signed the Lease originally as Tenant.”

Here, the lease and the assignment of the lease pre-date the plaintiff's accident and there is no dispute that the accident occurred on the leased portion of the premises covered by the lease. As attested by Mr. Liriano in his sworn affidavit, there is no dispute that on the date of the accident, defendant 870 MIP operated the subject premises and directed the maintenance and/or repairs of any areas required under its lease agreement with defendant Middle Island. Mr. Liriano further references insurance coverage for the subject accident under a policy with NorGuard Insurance Companies and repeatedly refers to the subject premises as being covered by a lease between defendant 870 MIP and defendant Middle Island.

For an indemnification claim to fall within the written contract exception to Workers’ Compensation Law § 11, however, it must be based upon “a provision in a written contract ․ by which the employer has expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered” (Workers’ Compensation Law § 11 [emphasis added]; see also Velazquez -Guadalupe v Ideal Bldrs. & Constr. Servs., Inc., supra). The indemnification clause in this instance does not refer to or specifically name 870 MIP as the employer or otherwise, but rather, references the “tenant, its agents, contractors, employees, servants, lessees or concessionaires.” There is no written agreement between defendant 870 MIP as employer (or even as tenant) whereby it expressly agrees, as employer, to indemnify defendant Middle Island for the type of loss alleged to have been suffered by the plaintiff. In addition, the assignment dated October 1, 2016 does not restate or reference the indemnification clause contained within the lease. Therefore, based upon the evidence before the Court, defendant Middle Island has not established its prima facie entitlement of summary judgment on its cross-claim for indemnification against defendant 870 MIP (see e.g. Tonking v Port Auth. Of NY & N.J.,3 NY3d 486, 490, 787 NYS2d 708[2004] [employer must “expressly agree to indemnify the claimant,” which requirement “furthers the spirit of the legislation”]; Velazquez -Guadalupe v Ideal Bldrs. & Constr. Servs., Inc., supra; Chong Fu Huang v 57-63 Greene Realty, LLC, 174 AD3d 777, 107 NYS3d 118 [2d Dept 2019]; Mantovani v Whiting-Turner Contr. Co.,55 AD3d 799, 869 NYS2d 544 [2d Dept 2008]; O'Berg v MacManus Group, Inc.,33 AD3d 599, 822 NYS2d 306 [2d Dept 2006][no express agreement between employer and owner for contribution and/or indemnification]; 405 Bedford Ave. Dev. Corp. v New Metro Constr., Ltd.,26 AD3d 408, 809 NYS2d 552 [2d Dept 2006]; Bush v Mechanicville Warehouse Corp., 79 AD3d 1327, 912 NYS2d 768 [3d Dept 2010][an assignment of a lease “is irrelevant” to an analysis under Workers’ Compensation Law § 11]; see also Cano v Mid-Valley Oil Co., Inc., 151 AD3d 685, 57 NYS3d 494 [2d Dept 2017][employer did not expressly agree to indemnify actual owner of property]; Lipshultz v K & G Indus.,294 AD2d 338, 742 NYS2d 90 [2d Dept 2002]). Because defendant Middle Island failed to establish its prima facie burden, the Court need not consider the opposing papers of defendant 870 MIP (see Alvarez v Prospect Hosp.,68 NY2d 320, 324, 508 NYS2d 923 [1986]). The Court has considered the remaining arguments of defendant Middle Island and finds that they lack merit.

Accordingly, the motion for summary judgment by defendant Key Food Stores Co-operative, Inc. for dismissal of all claims in the complaint and cross-claims asserted against it, is granted, the motion for partial summary judgment by 870 Middle Island Produce Corp. seeking dismissal of plaintiff's direct claims against it and all cross-claims for common law indemnification asserted by the co-defendants, is granted, and the motion for summary judgment by defendant Middle Island Plaza, LLC on its cross-claim for contractual indemnification against defendant 870 Middle Island Produce Corp., is denied.

The foregoing constitutes the decision and Order of the Court.

FOOTNOTES

1.   Plaintiff failed to include a counter statement of material facts as required by the Part Rules and 22 NYCRR 202.8-g.

2.   The notice of motion of defendant Middle Island does not seek any other relief.

3.   There appears to be a typographical error in this paragraph of the lease and that the word “at” was meant to be “act.”

4.   According to the first paragraph of the lease, it appears to be dated May 10th but no year is stated therein nor is there a date listed near the signatures of the parties to the lease. The assignment refers to the lease entered into on May 6, 2004, and thus, for purposes of this motion, the Court will deem that to be the date of the lease.

Christopher Modelewski, J.