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Supreme Court, Appellate Division, Fourth Department, New York.

James A. DIETZ, Plaintiff, v. COMPASS PROPERTY MANAGEMENT CORPORATION, et al., Defendants.

Compass Property Management Corporation and Evergreen Townhouses Homeowners Association, Inc., Third-Party Plaintiffs-Respondents, v. Siegel Landscape Service, Inc., Third-Party Defendant-Appellant.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., GORSKI, SMITH, PINE, AND LAWTON, JJ. Law Offices of Joseph D. Callery, Syracuse (Mary Ellen O'Brien of Counsel), for Third-Party Defendant-Appellant. Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (Johanna M. Dash of Counsel), for Third-Party Plaintiffs-Respondents.

Plaintiff commenced an action seeking damages for injuries he sustained while working for third-party defendant on property owned by defendant-third-party plaintiff Evergreen Townhouses Homeowners Association, Inc. (Evergreen) and managed by defendant-third-party plaintiff Compass Property Management Corporation (Compass) (collectively, Evergreen plaintiffs).   Plaintiff's employer, sued as Siegel Landscape Service, Inc. (SLS), contracted with Evergreen to perform drainage work on the property, and the terms of the contract were negotiated by Compass on behalf of Evergreen.   The contract, on a form prepared by SLS, contained a printed page of conditions ending with the statements that SLS would “assume all responsibilities for Compensation and Liability” and that it was “fully insured by State Insurance Fund & CNA.”   Based on those provisions in the contract, the Evergreen plaintiffs tendered the defense of that action to SLS.   Upon the refusal of SLS to defend and indemnify the Evergreen plaintiffs, they commenced this third-party action, alleging a breach of contract and seeking indemnification.

Following discovery, the Evergreen plaintiffs moved for summary judgment seeking “an order requiring [SLS] to indemnify them under the contractual indemnification provision.”   SLS cross-moved for summary judgment dismissing the third-party complaint or, alternatively, for an order denying the Evergreen plaintiffs' motion for summary judgment.   We conclude that Supreme Court erred in granting the motion of the Evergreen plaintiffs and in denying the cross motion.

After giving effect and meaning to every term (see Village of Hamburg v. American Ref-Fuel Co. of Niagara, 284 A.D.2d 85, 89, 727 N.Y.S.2d 843, lv. denied 97 N.Y.2d 603, 735 N.Y.S.2d 492, 760 N.E.2d 1288) and strictly construing the contract “to avoid reading into it a duty which the parties did not intend to be assumed” (Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903), we conclude that the contract does not “evince[ ] an ‘unmistakable intention’ to indemnify” (Matter of Heimbach v. Metropolitan Transp. Auth., 75 N.Y.2d 387, 392, 553 N.Y.S.2d 653, 553 N.E.2d 242;  see Hooper Assoc., 74 N.Y.2d at 491-492, 549 N.Y.S.2d 365, 548 N.E.2d 903).

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the motion for summary judgment is denied, the cross motion for summary judgment is granted and the third-party complaint is dismissed.