ALVARENGA v. Dimension One, Inc., appellant (and a third-Party action). (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Dimension One, Inc., appeals from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), dated May 11, 2020.  The order, insofar as appealed from, in effect, granted that branch of the motion of the defendants Castagna Realty Co., Inc., and Louis Vuitton USA, Inc., which was, in effect, for summary judgment on the cross-claim of the defendant Louis Vuitton USA, Inc., for contractual indemnification against the defendant Dimension One, Inc.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants Castagna Realty Co., Inc., and Louis Vuitton USA, Inc., which was, in effect, for summary judgment on the cross-claim of the defendant Louis Vuitton USA, Inc., for contractual indemnification against the defendant Dimension One, Inc., is denied.

The plaintiff, an employee of Eagle Metals Corp., also known as Eagle Metals Corp, also known as Eagle Metals Corporation (hereinafter Eagle), allegedly was injured while removing steel beams from Eagle's flatbed delivery truck in the parking lot of a shopping mall owned by the defendant Castagna Realty Co., Inc. (hereinafter Castagna).  The steel beams were being delivered for use in a renovation project, in which the defendant Dimension One, Inc. (hereinafter Dimension), was the general contractor, being performed at a store leased by the defendant Louis Vuitton USA, Inc. (hereinafter Louis Vuitton).

The plaintiff commenced this action to recover damages for personal injuries against Louis Vuitton, Castagna, and Dimension.  In a verified answer, Louis Vuitton asserted, inter alia, a cross-claim for contractual indemnification against Dimension.  Thereafter, Louis Vuitton and Castagna moved, among other things, in effect, for summary judgment on Louis Vuitton's cross-claim for contractual indemnification against Dimension.  In an order dated May 11, 2020, the Supreme Court, inter alia, in effect, granted that branch of the motion of Louis Vuitton and Castagna which was, in effect, for summary judgment on Louis Vuitton's cross-claim for contractual indemnification against Dimension.  Dimension appeals.

“A party's right to contractual indemnification depends upon the specific language of the relevant contract” (Shea v. Bloomberg, L.P., 124 A.D.3d 621, 622, 2 N.Y.S.3d 512;  see Mejia v. Cohn, 188 A.D.3d 1035, 1038, 136 N.Y.S.3d 480).  “A 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” (Shea v. Bloomberg, L.P., 124 A.D.3d at 622, 2 N.Y.S.3d 512;  see Mejia v. Cohn, 188 A.D.3d at 1038, 136 N.Y.S.3d 480).  Here, the contract between Dimension and Louis Vuitton provided that Dimension was required to indemnify Louis Vuitton for all claims for damages “arising out of or resulting from performance of the Work ․ to the extent caused by the negligent acts or omissions of [Dimension], a Subcontractor, [or] anyone directly or indirectly employed by them.”  Since Louis Vuitton and Castagna failed to eliminate all triable issues of fact regarding whether the plaintiff's injuries were caused by the negligent acts or omissions of Eagle or any individual employed by it, the Supreme Court should have denied that branch of their motion which was, in effect, for summary judgment on Louis Vuitton's cross-claim for contractual indemnification against Dimension (see Palaguachi v. Idlewild 228th St., LLC, 197 A.D.3d 1321, 1323, 153 N.Y.S.3d 585;  Fritz v. Sports Auth., 91 A.D.3d 712, 713–714, 936 N.Y.S.2d 310;  Martinez v. City of New York, 73 A.D.3d 993, 999, 901 N.Y.S.2d 339).

The remaining contentions of Louis Vuitton and Castagna are either improperly raised for the first time on appeal or without merit.

CONNOLLY, J.P., MALTESE, WOOTEN and DOWLING, JJ., concur.