Clyde v. Franciscan Sisters of Allegany, N.Y., Inc.
| Docket Number | 126 CA 22-00219 |
| Decision Date | 09 June 2023 |
| Citation | 2023 NY Slip Op 03097 |
| Parties | JOHN CLYDE, PLAINTIFF-RESPONDENT, v. FRANCISCAN SISTERS OF ALLEGANY, N.Y., INC., DEFENDANT, AND KINLEY CORPORATION, DEFENDANT-APPELLANT. KINLEY CORPORATION, THIRD-PARTY PLAINTIFF-RESPONDENT, v. NEW YORK COMMERCIAL FLOORING, INC., THIRD-PARTY DEFENDANT-APPELLANT. |
| Court | New York Supreme Court — Appellate Division |
FELDMAN KIEFFER, LLP, BUFFALO (ADAM C. FERRANDINO OF COUNSEL), FOR DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-RESPONDENT.
GOLDBERG SEGALLA LLP, BUFFALO (JAMES M. SPECYAL OF COUNSEL) FOR THIRD-PARTY DEFENDANT-APPELLANT.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, MONTOUR, AND OGDEN, JJ.
Appeals from an order of the Supreme Court, Cattaraugus County (Ronald D. Ploetz, A.J.), entered January 3, 2022. The order among other things, denied that part of the motion of defendant-third-party plaintiff seeking summary judgment dismissing the complaint against it, and denied in part the motion of third-party defendant for summary judgment dismissing the third-party complaint.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying defendant-third-party plaintiff's motion in its entirety, granting third-party defendant's motion insofar as it sought summary judgment dismissing the first cause of action in the third-party complaint and dismissing that cause of action, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this negligence action seeking to recover damages for injuries that he sustained when he slipped and fell on an accumulation of snow and ice located in a temporary parking lot used by workers on a remodeling project for a residential building owned by defendant Franciscan Sisters of Allegany, N.Y., Inc. Defendant-third-party plaintiff Kinley Corporation (Kinley) had been retained to perform work on the remodeling project including, inter alia, the construction of the temporary parking lot to be used by workers on the site. Kinley subcontracted with plaintiff's employer-third-party defendant New York Commercial Flooring, Inc. (NYCF)-to perform specific work on the remodeling project. Kinley commenced a third-party action against NYCF asserting causes of action for, inter alia, contractual indemnification and breach of the subcontract. NYCF and Kinley appeal from an order that, inter alia, granted those parts of Kinley's motion for summary judgment with respect to the contractual indemnification and breach of contract causes of action in the third-party complaint, denied those parts of NYCF's motion seeking summary judgment dismissing those same two causes of action, and denied Kinley's motion to the extent that it sought summary judgment dismissing the complaint against it.
Initially, on its appeal, NYCF contends that Supreme Court erred in granting Kinley's motion for summary judgment with respect to the first cause of action, for contractual indemnification, and that, instead, it should have granted that part of NYCF's motion seeking summary judgment dismissing that cause of action. We agree and therefore modify the order accordingly. The indemnification provision in the subcontract between Kinley and NYCF plainly obligates NYCF "to indemnify [Kinley] for [its] own acts of negligence," rendering it "void and unenforceable under General Obligations Law § 5-322.1 (1)" (Charney v LeChase Constr., 90 A.D.3d 1477, 1479 [4th Dept 2011]; see Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 794 [1997], rearg denied 90 N.Y.2d 1008 [1997]). Further, the indemnification provision does not contain a savings clause stating that indemnification is required only" '[t]o the fullest extent permitted by law'" (Charney, 90 A.D.3d at 1479; see Bink v F.C. Queens Place Assoc., LLC, 27 A.D.3d 408, 409 [2d Dept 2006]), and the liability giving rise to indemnification is predicated on a finding of negligence (see Delaney v Spiegel Assoc., 225 A.D.2d 1102, 1104 [4th Dept 1996]). Indeed, the sole potential basis for Kinley's liability here is its own negligence, particularly in light of the fact that in the third-party complaint and its motion papers Kinley made no allegations-or offered any evidence showing-that the accident was the result of NYCF's or another party's negligence (see Clavin v CAP Equip. Leasing Corp., 156 A.D.3d 404, 404-405 [1st Dept 2017]).
We also agree with NYCF that the court erred in granting Kinley's motion with respect to the breach of contract cause of action in the third-party complaint, and we therefore further modify the order accordingly. In that cause of action, Kinley alleged that NYCF breached the subcontract because it had failed to procure insurance for Kinley. As relevant here, "[a] party seeking summary judgment based on an alleged failure to procure insurance naming that party as an... insured must demonstrate that a contract provision required that such insurance be procured and that the provision was not complied with" (Corter-Longwell v Juliano, 200 A.D.3d 1578, 1580 [4th Dept 2021] [internal quotation marks omitted]; see DiBuono v Abbey, LLC, 83 A.D.3d 650, 652 [2d Dept 2011]). We conclude that Kinley did not meet its initial burden here because, although the subcontract required NYCF to procure insurance for Kinley, Kinley submitted no evidence that NYCF failed to so procure insurance in compliance with the subcontract (see Hunt v Ciminelli-Cowper Co., Inc., 66 A.D.3d 1506, 1510 [4th Dept 2009]). The only evidence Kinley supplied to support its allegation is the assertion in an affidavit from Kinley's attorney that NYCF's insurer had not accepted Kinley's tender for defense and indemnity. In that affidavit, Kinley's attorney asserts that, in response to its tender for defense and indemnity, he was told merely that "further discovery [was] needed... to determine whether Kinley was responsible" for the accident. Kinley has supplied no evidence establishing that tender was not accepted because NYCF did not procure insurance for Kinley-it did not even submit a copy of NYCF's insurance policy. Indeed, at this point, to the extent that Kinley contends that it has been denied a defense by NYCF's insurance carrier, "the proper remedy is to commence a declaratory judgment action against [NYCF's] insurer[] based upon [its] rights as [an] additional insured[]" (id. at 1510-1511). For similar reasons, we conclude that, contrary to NYCF's contention, the court properly denied NYCF's motion to the extent it sought dismissal of the breach of contract cause of action because NYCF failed to supply any evidence to show either that it was not required to obtain insurance coverage for Kinley or that it had actually obtained such coverage as required by the subcontract (see generally Corter-Longwell, 200 A.D.3d at 1580-1581).
On its appeal, Kinley contends that the court should have granted that part of its motion seeking summary judgment dismissing the complaint against it on the ground that it did not own control or have a special use of the property where the accident occurred and because it lacked actual or constructive notice of the...
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