ALFIERI v. Treadwell Corporation, appellant. (2024)

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the defendant Treadwell Corporation appeals from an order of the Supreme Court, Suffolk County (Jerry Garguilo, J.), dated September 8, 2021, and an order of the same court dated February 22, 2022.  The order dated September 8, 2021, insofar as appealed from, granted the motion of the defendant National Grid Generation, LLC, for conditional summary judgment on its cross-claim for contractual indemnification against the defendant Treadwell Corporation.  The order dated February 22, 2022, denied the motion of the defendant Treadwell Corporation for leave to reargue its opposition to the prior motion of the defendant National Grid Generation, LLC, for conditional summary judgment on its cross-claim for contractual indemnification against the defendant Treadwell Corporation.

ORDERED that the appeal from the order dated February 22, 2022, is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated September 8, 2021, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendant National Grid Generation, LLC.

In 2019, the plaintiff Carmine Alfieri (hereinafter the plaintiff), and his wife suing derivatively, commenced this action against, among others, the defendants Treadwell Corporation (hereinafter Treadwell) and National Grid Generation, LLC (hereinafter National Grid), alleging that the plaintiff's exposure to asbestos at a facility owned by National Grid in the course of his employment with Treadwell caused the plaintiff to develop lung cancer.  At the time of the plaintiff's employment with Treadwell, the facility was owned by National Grid's predecessor, the Long Island Lighting Company (hereinafter LILCO), which had contracted with Treadwell pursuant to a series of agreements dated between July 1965 and March 1966 to provide labor and materials in connection with the erection of boiler units.  National Grid interposed an answer asserting, inter alia, a cross-claim against Treadwell for contractual indemnification and thereafter moved for conditional summary judgment on its cross-claim against Treadwell for contractual indemnification.  In an order dated September 8, 2021, the Supreme Court, among other things, granted National Grid's motion.  Treadwell appeals.

The Supreme Court properly granted National Grid's motion for conditional summary judgment on its cross-claim against Treadwell for contractual indemnification.  “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 Zapototsky v. Ascape Landscape & Constr. Corp., 221 A.D.3d 1055, 1056, 201 N.Y.S.3d 151;  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, National Grid demonstrated its prima facie entitlement to conditional summary judgment on its cross-claim against Treadwell for contractual indemnification.  Pursuant to the terms of the indemnification provisions of the relevant contracts between Treadwell and LILCO, Treadwell was obligated to indemnify LILCO “from and against all losses, damages, claims, liens and encumbrances ․ arising out of or in any way connected with the work, and whenever made or incurred, including any and all liability imposed by law” (see Matter of New York City Asbestos Litig., 142 A.D.3d 408, 410, 39 N.Y.S.3d 125;  Shea v. Bloomberg, L.P., 124 A.D.3d at 622, 2 N.Y.S.3d 512).  In opposition, Treadwell failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).  Accordingly, the Supreme Court properly granted National Grid's motion for conditional summary judgment on its cross-claim against Treadwell for contractual indemnification.

IANNACCI, J.P., WOOTEN, GENOVESI and DOWLING, JJ., concur.