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

Ney CASTILLO, Plaintiff–Respondent, v. BIG APPLE HYUNDAI, Defendant,

Safeguard NY I LLC, Defendant–Respondent. Safeguard NY I LLC, Third–Party Plaintiff–Respondent, v. Red Hook Construction Group I LLC, Third–Party Defendant–Appellant.


Decided: November 14, 2019

Gische, J.P., Webber, Kern, Moulton, JJ. Carol R. Finocchio, New York, for appellant. Hach & Rose, LLP, New York (George W. Ilchert of counsel), for Ney Castillo, respondent. McGaw, Alventosa & Zajac, Jericho (Andrew Zajac of counsel), for Safeguard N.Y. I LLC, respondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about January 11, 2019, which, to the extent appealed from, granted defendant/third-party plaintiff Safeguard N.Y. I LLC's motion for summary judgment on its claim against third-party defendant Red Hook Construction Group I LLC (Red Hook I) for contractual indemnification and conditionally granted the motion for summary judgment as to the claim for breach of contract for failure to procure insurance, denied Red Hook I's motion for summary judgment dismissing those claims, and denied Safeguard N.Y. I's motion for summary judgment dismissing as against it the Labor Law § 241(6) claim predicated on Industrial Code § 23–1.7(e)(2), unanimously modified, on the law, to the extent of denying Safeguard N.Y. I's motion as against Red Hook I, and upon a search of the record, to grant Safeguard N.Y. I's motion dismissing the Labor Law § 241(6) claim predicated on Industrial Code § 23–1.7(e)(2), and otherwise affirmed, without costs.  The Clerk is directed to enter judgment dismissing the complaint as against Safeguard.

This appeal centers on Red Hook I's contention that there was no operative written agreement between Safeguard N.Y. I and Red Hook I governing plaintiff's demolition work, and even if there was, Red Hook I had no express written agreement to indemnify Safeguard N.Y. I in connection with plaintiff's accident.

We agree with the motion court that the indemnification provision contained in the AIA Document A201™–2007 General Conditions of the Contract for Construction was expressly adopted by reference and made part of the contract documents (see Liberty Mgt. & Constr. v. Fifth Ave. & Sixty–Sixth St. Corp., 208 A.D.2d 73, 77–78, 620 N.Y.S.2d 827 [1st Dept. 1995]; see generally Maines Paper & Food Serv., Inc. v. Keystone Assoc., Architects, Engrs., & Surveyors, LLC, 134 A.D.3d 1340, 1342, 23 N.Y.S.3d 398 [3d Dept. 2015]).

Summary judgment is not available, however, for either party as to the indemnification provisions because there are ambiguities in the written contracts regarding which of the Red Hook entities were engaged to do the operative work covered by the indemnification provisions (Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363, 368, 795 N.Y.S.2d 491, 828 N.E.2d 593 [2005]).

Since Industrial Code (12 NYCRR) § 23–1.7(e)(2) is inapplicable to this case, as the safe over which plaintiff tripped was integral to the work of removing debris from the premises, the Labor Law § 241(6) claim predicated on Industrial Code § 23–1.7(e)(2) should be dismissed (see Solis v. 32 Sixth Ave. Co. LLC, 38 A.D.3d 389, 390, 832 N.Y.S.2d 524 [1st Dept. 2007]; Smith v. New York City Hous. Auth., 71 A.D.3d 985, 987, 897 N.Y.S.2d 232 [2d Dept. 2010]).