Linarello v. City University of New York

• Decision Date: 06 April 2004
• Docket Number: 3312.
• Citation: 6 A.D.3d 192,774 N.Y.S.2d 517,2004 NY Slip Op 02503
• Parties: JOSEPH LINARELLO et al., Plaintiffs, v. CITY UNIVERSITY OF NEW YORK, Defendant, and MORSE DIESEL INTERNATIONAL, INC., Defendant and Third-Party Plaintiff-Appellant. JAGLER INDUSTRIES, INC., et al., Third-Party Defendants-Respondents, et al., Third-Party Defendant. (And a Second Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

6 A.D.3d 192

774 N.Y.S.2d 517

2004 NY Slip Op 02503

JOSEPH LINARELLO et al., Plaintiffs, v. CITY UNIVERSITY OF NEW YORK, Defendant, and MORSE DIESEL INTERNATIONAL, INC., Defendant and Third-Party Plaintiff-Appellant JAGLER INDUSTRIES, INC., et al., Third-Party Defendants-Respondents, et al., Third-Party Defendant. (And a Second Third-Party Action.)

3312.

Appellate Division of the Supreme Court of the State of New York, First Department.

April 6, 2004.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered April 2, 2003, which, in an action by an injured laborer against, inter alia, the construction site's construction manager, defendant and third-party plaintiff-appellant Morse Diesel, inter alia, (1) granted the motions of third-party defendant general liability insurers USF&G and AEI for summary judgment declaring that their respective policies with third-party defendant subcontractors Westmont and Jagler, the latter plaintiff's employer, do not cover Morse Diesel as an additional insured, (2) denied in part Morse Diesel's cross motion for sanctions against Jagler for spoliation, and (3) denied Morse Diesel's cross motion for partial summary judgment on its cause of action against Jagler for contractual indemnification, unanimously modified, on the law and the facts, to preclude Jagler from denying receipt of Morse Diesel's June 1, 1998 memorandum, and to clarify that the indemnification provision in Jagler's contract with the Dormitory Authority may be enforceable depending on the outcome of the main action, and otherwise affirmed, without costs.

The indemnification clause in Jagler's contract with the site's owner, the State Dormitory Authority, invoked by Morse Diesel, provides that Jagler is to indemnify the owner and construction manager for any and all losses they sustain as a result of any or all injuries to any and all persons arising out of or occurring in connection with Jagler's work, excepting only injuries that arise out of faulty designs or the affirmative acts of the owner or construction manager committed with the intent to cause injury. Such clause indemnifies the owner and construction manager for their own negligence and therefore runs afoul of General Obligations Law § 5-322.1 (1). We reject Morse Diesel's argument that the indemnification clause, at least to the extent it does not require Jagler to indemnify Morse Diesel for its own negligence, is saved by another clause providing that "[e]ach and every provision of law and clause required by law to be inserted in the Contract shall be deemed to be inserted therein." Such language is not equivalent to language in the indemnification clause itself limiting a subcontractor's indemnification obligation "to the extent permitted by law" (see Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 795 [1997]; Dutton v Pankow Bldrs., 296 AD2d 321 [2002], lv denied 99 NY2d 511 [2003]).

An indemnification clause that runs afoul of General Obligations Law § 5-322.1 (1) is enforceable in the event the indemnitee is found not negligent but nevertheless held vicariously liable to the plaintiff (see Itri, 89 NY2d at 795 n 5; Masciotta v Morse Diesel Intl., 303 AD2d 309, 312 [2003]). There being no finding that Morse Diesel was not negligent, the motion court should not have said, in denying Morse Diesel's motion for a conditional judgment of indemnification against Jagler, that the indemnification clause is unenforceable. Accordingly, we modify to clarify that the indemnification may be enforceable depending on the outcome of the main action.

Morse Diesel's motion for a conditional judgment of indemnification against Jagler (see Masciotta, 303 AD2d at 310) was properly denied on the ground that Morse Diesel failed to demonstrate its freedom from negligence (see Zeigler-Bonds v Structure Tone, 245 AD2d 80, 81 [1997]; Potter v M.A. Bongiovanni, Inc., 271 AD2d 918, 919 [2000]). As the motion court found, it appears that Morse Diesel had more than mere general supervisory authority, at least with respect to its subcontractor W. Property Resources, who was responsible for cleaning up debris and providing temporary protection around openings, and whose negligence in those respects may have contributed to the accident. In particular, there is evidence that Morse Diesel directed W. Property's work and supplied its equipment (compare Masciotta, 303 AD2d at 312; Buccini v 1568 Broadway Assoc., 250 AD2d 466, 468-469 [1998]).

While Jagler's egregious destruction of its records pertaining to the project, including those that the court order had...