LAFLEUR v. Alltek Energy Systems, Inc., Third-Party Defendant-Respondent. (2008)

Appeals (1) from an order of the Supreme Court (Ceresia, Jr., J.), entered March 19, 2007 in Rensselaer County, which, among other things, granted third-party defendant's cross motion for summary judgment dismissing the third-party complaint, and (2) from the judgment entered thereon.

In 2002, defendant MLB Industries, Inc. was hired by defendant Hannaford Brothers Company to renovate some of Hannaford's grocery stores.   MLB subcontracted out to third-party defendant, Alltek Energy Systems, Inc., work that involved the installation of a four-foot exhaust hood in the deli department of one of its stores.   Prior to the commencement of that work, MLB and Alltek executed a written contract, which included indemnification provisions.   That job was completed and Alltek was paid.

In 2003, MLB again subcontracted with Alltek to replace the four-foot hood with a larger one.   Before that work commenced, MLB's vice-president of operations signed a written proposal submitted by Alltek, which did not contain an indemnification agreement;  no formal, written subcontract was executed at that time.   While the project was underway, plaintiff, an employee of Alltek, was injured.   A couple of months later, after the job had been completed, a formal written subcontract was executed by MLB and Alltek.   That contract expressly provided for the incorporation of the terms of the 2002 contract, including its indemnification provisions.

Plaintiff commenced this action against, among others, MLB.   MLB then commenced a third-party action against Alltek seeking contractual indemnification and moved for summary judgment.   Alltek cross-moved for summary judgment dismissing the third-party complaint.   Supreme Court denied MLB's motion and granted Alltek's cross motion.   MLB now appeals and we affirm.

 Workers' Compensation Law § 11 prohibits third-party claims for indemnification against an employer unless “the employee has sustained a ‘grave injury’ or when there is 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’ ” (Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363, 367, 795 N.Y.S.2d 491, 828 N.E.2d 593 [2005], quoting Workers' Compensation Law § 11).  “ ‘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’ ” (Tonking v. Port Auth. of N.Y. & N.J., 3 N.Y.3d 486, 490, 787 N.Y.S.2d 708, 821 N.E.2d 133 [2004], quoting Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989] ). Thus, an indemnification agreement executed after the accident occurred will not be applied retroactively in the absence of evidence that the agreement was made as of a date prior to the occurrence of the accident and that the parties intended the contract to apply as of that date (see Podhaskie v. Seventh Chelsea Assoc., 3 A.D.3d 361, 362, 770 N.Y.S.2d 332 [2004];  Pena v. Chateau Woodmere Corp., 304 A.D.2d 442, 443-444, 759 N.Y.S.2d 451 [2003];  Stabile v. Viener, 291 A.D.2d 395, 396, 737 N.Y.S.2d 381 [2002], lv. dismissed 98 N.Y.2d 727, 749 N.Y.S.2d 477, 779 N.E.2d 188 [2002] ).

 Here, there is no language in the 2003 contract that the parties intended its terms, including the indemnification provision incorporated by reference, to be retroactively applied or that the contract's effective date was intended to be any date other than the date it was executed (see Temmel v. 1515 Broadway Assoc., L.P., 18 A.D.3d 364, 365, 795 N.Y.S.2d 234 [2005];  Burke v. Fisher Sixth Ave. Co., 287 A.D.2d 410, 731 N.Y.S.2d 724 [2001];  see also McGovern v. Gleason Bldrs., Inc., 41 A.D.3d 1295, 1296, 839 N.Y.S.2d 384 [2007] ).   Nor was there any record evidence of a longstanding relationship or that the prior indemnification agreement constituted a blanket agreement (see Rodrigues v. N & S Bldg. Contrs., Inc., 5 N.Y.3d 427, 430, 432, 433, 805 N.Y.S.2d 299, 839 N.E.2d 357 [2005] );  there was also no evidence of any writing indicating the existence of such an agreement at the time of the accident (see Gilbert v. Albany Med. Ctr., 21 A.D.3d 677, 678, 799 N.Y.S.2d 685 [2005];  Nephew v. Klewin Bldg. Co., Inc., 21 A.D.3d 1419, 1421, 804 N.Y.S.2d 157 [2005] ).   Thus, MLB failed to create a triable issue of fact and Supreme Court properly granted Alltek's cross motion for summary judgment dismissing the third-party complaint (see CPLR 3212[b];  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).

ORDERED that the order and judgment are affirmed, with costs.

STEIN, J.

SPAIN, J.P., LAHTINEN, KANE and MALONE Jr., JJ., concur.