MIKULSKI v. Gdansk Contracting of New York, Corp., third-party defendant-respondent. (2010)

In an action to recover damages for personal injuries, in which the defendant Adam R. West, Inc., commenced a third-party action for contractual indemnification, the defendant third-party plaintiff appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Berliner, J.), dated May 27, 2009, as denied that branch of its motion which was for summary judgment on the third-party complaint, and (2) from an order and judgment (one paper) of the same court entered July 15, 2009, which, after a nonjury trial, in effect, granted the motion of the third-party defendant pursuant to CPLR 4401 for judgment as a matter of law dismissing the third-party complaint, and dismissed the third-party complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the order and judgment is affirmed;  and it is further;

ORDERED that one bill of costs is awarded to the respondent.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the order and judgment (see CPLR 5501[a][1] ).

 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” (Workers' Compensation Law § 11;  see 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;  Lafleur v. MLB Indus., Inc., 52 A.D.3d 1087, 861 N.Y.S.2d 803).   Furthermore, indemnity contracts are to be strictly construed to avoid reading into them duties which the parties did not intend to be assumed (see Great N. Ins. Co. v. Interior Constr. Corp., 7 N.Y.3d 412, 417, 823 N.Y.S.2d 765, 857 N.E.2d 60;  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;  Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903;  Quality King Distribs., Inc. v. E & M ESR, Inc., 36 A.D.3d 780, 827 N.Y.S.2d 700).   Therefore, such an agreement “cannot be held to have a retroactive effect unless by its express words or necessary implication it clearly appears to be the parties' intention to include past obligations” (Kane Mfg. Corp. v. Partridge, 144 A.D.2d 340, 341, 533 N.Y.S.2d 948;  see Lafleur v. MLB Indus., Inc., 52 A.D.3d at 1088, 861 N.Y.S.2d 803;  Quality King Distribs., Inc. v. E & M ESR, Inc., 36 A.D.3d at 782, 827 N.Y.S.2d 700;  cf. Stabile v. Viener, 291 A.D.2d 395, 737 N.Y.S.2d 381).

 Thus, an indemnification agreement executed by a party after the plaintiff's 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 agreement to apply as of that date (see Podhaskie v. Seventh Chelsea Assoc., 3 A.D.3d 361, 770 N.Y.S.2d 332;  Lafleur v. MLB Indus., Inc., 52 A.D.3d at 1088, 861 N.Y.S.2d 803;  Quality King Distribs., Inc. v. E & M ESR, Inc., 36 A.D.3d at 782, 827 N.Y.S.2d 700;  Pena v. Chateau Woodmere Corp., 304 A.D.2d 442, 759 N.Y.S.2d 451;  Stabile v. Viener, 291 A.D.2d at 396, 737 N.Y.S.2d 381).   Here, there was no language in the hold-harmless agreement indicating that the parties intended its terms to be retroactively applied, or that the contract's effective date was intended to be any date other than the date it was fully executed (see Lafleur v. MLB Indus., Inc., 52 A.D.3d at 1088, 861 N.Y.S.2d 803;  Temmel v. 1515 Broadway Assoc., L.P., 18 A.D.3d 364, 795 N.Y.S.2d 234). Moreover, the testimony of the parties established that the third-party defendant did not execute the agreement until after the plaintiff's accident.   Therefore, the defendant third-party plaintiff was unable to make a prima facie showing of its entitlement to judgment as a matter of law by demonstrating the absence of any triable issues of fact regarding the applicability of the indemnification agreement to the plaintiff's accident and, accordingly, its motion for summary judgment was properly denied (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).   Additionally, the Supreme Court properly, in effect, granted the third-party defendant's motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the third-party complaint and dismissed the third-party complaint, since the third-party plaintiff did not make out a prima facie case at trial for indemnification (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Lyons v. McCauley, 252 A.D.2d 516, 675 N.Y.S.2d 375;  Hylick v. Halweil, 112 A.D.2d 400, 492 N.Y.S.2d 57).