Angwin v. SRF Partnership

• Decision Date: 23 July 2001
• Docket Number: ET,PLAINTIFF-APPELLAN,DEFENDANT-RESPONDENT,THIRD-PARTY
• Parties: (A.D. 2 Dept. 2001) KATHERINE ANGWIN, PLAINTIFF, v. SRF PARTNERSHIP, L.P., DEFENDANT, WELLS FARGO ALARM SERVICES, INC., DEFENDANTAL., DEFENDANTS; KINRAY, INC., 2000-02911 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 151

729 N.Y.S.2d 151 (A.D. 2 Dept. 2001)

KATHERINE ANGWIN, PLAINTIFF, v. SRF PARTNERSHIP, L.P., DEFENDANT,

WELLS FARGO ALARM SERVICES, INC., DEFENDANT THIRD-PARTY PLAINTIFF-APPELLANT, ET AL., DEFENDANTS;

KINRAY, INC., THIRD-PARTY DEFENDANT-RESPONDENT.

2000-02911

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Submitted April 24, 2001

July 23, 2001

Goldberg & Associates, New York, N.Y. (Jack Gross of counsel), for defendant third-party plaintiff-appellant.

Perez & Furey, Uniondale, N.Y. (Joseph Varvaro of counsel), for third-party defendant-respondent.

David S. Ritter, J.P., Gabriel M. Krausman, Howard Miller, Nancy E. Smith, JJ.

In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals from an order of the Supreme Court, Queens County (Golar, J.), dated March 2, 2000, which granted the motion of the third-party defendant for summary judgment dismissing the third-party complaint, and denied its cross motion for conditional summary judgment on the issue of contractual indemnification against the third-party defendant.

ORDERED that the order is affirmed, with costs.

On April 19, 1994, the defendant third-party plaintiff, Wells Fargo Alarm Services, Inc. (hereinafter Wells Fargo), entered into an agreement with the third-party defendant, Kinray, Inc. (hereinafter Kinray), to install and maintain an alarm system in a building leased by Kinray. Under the terms of the agreement, Wells Fargo was to install and maintain in good working order various items of equipment necessary to send signals from Kinray's premises to Wells Fargo's central station. The agreement also contained an indemnification clause requiring Kinray to indemnify Wells Fargo in the event that a person who was not a party to the agreement made a claim arising from the "failure of its equipment or service in any respect, whether or not caused by the negligence, active or passive, of Wells Fargo".

On September 11, 1996, the plaintiff, Katherine Angwin, a Kinray employee, allegedly was injured when a magnetic lock mounted above a door frame fell and struck her on the head. The magnetic lock was part of the alarm system installed by Wells Fargo and its subcontractor. Angwin commenced an action to recover damages for personal injuries against, among others, Wells Fargo, alleging that its negligent installation and maintenance of the magnetic lock caused the accident. Wells Fargo then commenced a third-party action against Kinray, seeking both common-law and contractual indemnification. Kinray subsequently moved for summary judgment dismissing the third-party complaint, arguing that Wells Fargo's common-law indemnification claim should be dismissed because Angwin did not sustain a grave injury as required by Workers' Compensation Law §11. It also argued that the contractual indemnification claim should be dismissed because the indemnification clause did not encompass an accident arising from Wells Fargo's failure to properly secure and maintain the magnetic lock. Wells Fargo cross-moved for conditional summary judgment on its contractual indemnification claim, contending that Angwin's claim was within the scope of the indemnification...