Onofre v. Bd. of Managers of the Downtown Condo., Downtown Condo., Maxons Restorations, Inc.

• Decision Date: 11 July 2014
• Docket Number: Index No. 590062/2012,Index No. 114799/2010,Index No, 590424/2011
• Court: New York Supreme Court
• Parties: MARICELA ONOFRE, Plaintiff v. BOARD OF MANAGERS OF THE DOWNTOWN CONDOMINIUM, DOWNTOWN CONDOMINIUM, MAXONS RESTORATIONS, INC., and COOPER SQUARE REALTY, INC., Defendants MAXONS RESTORATIONS, INC., Third Party Plaintiff v. NEW CONCEPT ENVIRONMENTAL CLEANING CORP., Third Party Defendant MAXONS RESTORATIONS, INC., Second Third Party Plaintiff v. NEW CONCEPT ENVIRONMENTAL CLEANING CORP., Second Third Party Defendant

2014 NY Slip Op 31989(U)

MARICELA ONOFRE, Plaintiff
v.
BOARD OF MANAGERS OF THE DOWNTOWN CONDOMINIUM,
DOWNTOWN CONDOMINIUM, MAXONS RESTORATIONS, INC.,
and COOPER SQUARE REALTY, INC., Defendants

MAXONS RESTORATIONS, INC., Third Party Plaintiff
v.
NEW CONCEPT ENVIRONMENTAL CLEANING CORP., Third Party Defendant

MAXONS RESTORATIONS, INC., Second Third Party Plaintiff
v.
NEW CONCEPT ENVIRONMENTAL CLEANING CORP., Second Third Party Defendant

Index No. 114799/2010
Index No, 590424/2011
Index No. 590062/2012

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

FIELD: JULY 31, 2014
July 11, 2014

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

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Plaintiff's action seeks to recover for her injuries from her fall off a ladder October 15, 2010, while employed by second third party defendant New Concept Environmental Cleaning Corp., which was performing mold removal at 15 Broad Street, New York County, under a contract with an emergency services contractor, defendant-second third party plaintiff Maxons Restorations, Inc. New Concept Environmental Cleaning's work was a component of Maxons Restorations' services at the site following a water leak there. Maxons Restorations moves for summary judgment on Maxons Restorations' contractual indemnification claim against New Concept Environmental Cleaning. C.P.L.R. § 3212(b) and (e).

I. THE PARTIES' CONTRACT GOVERNING THE WORK OCTOBER 15, 2010

Maxons Restorations has authenticated a contract between Maxons Restorations and New Concept Environmental Cleaning in responding to its notice to admit. C.P.L.R. § 3123(a). Maxons Restorations' Executive Vice President admitted under oath that a Vendor Agreement dated January 5, 2005, was a contract between the two parties and, despite its date, was in effect October 15, 2010, and that New Concept Environmental Cleaning's work at 15 Broad Street on that date was pursuant to that contract. Aff. in Supp. of Daniel W. London Exs. H-I. New Concept Environmental Cleaning's witness Angela Dominguez on whose deposition testimony Maxons Restorations also relies, however, testified that she executed multiple Vendor Agreements with Maxons Restorations on New Concept Environmental Cleaning's behalf. No one presents, let alone authenticates, a Vendor Agreement or another contract

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between Maxons Restorations and New Concept Environmental Cleaning that is dated after January 5, 2005, or refers specifically to 15 Broad Street. IRB-Brasil Resseguros S.A. v. Portobello Intl. Ltd., 84 A.D.3d 637, 638 (1st Dep't 2011); Giordano v. Berisha, 45 A.D.3d 416, 417 (1st Dep't 2007); Chubb Natl. Ins. Co. v. Platinum Customcraft Corp., 38 A.D.3d 244, 245 (1st Dep't 2007); Washington v. Montefiore Medical Ctr., 9 A.D.3d 271, 272 (1st Dep't 2004).

According to Maxons Restorations' attorney, the Vendor Agreement shown to Dominguez at her deposition was dated October 12, 2004. London Aff. Ex. K. This contract, however, is between Maxons Restorations and New Concept Cleaning Company, not second third party defendant New Concept Environmental Cleaning Corp. Although Dominguez testified that she executed this Vendor Agreement, and "New Concept" performed work at 15 Broad Street pursuant to this Vendor Agreement, id. Ex. F, at 16, she also identified it merely as "a vendor agreement that Maxons has us sign in order to perform work with them," id. Ex. F, at 11 (emphasis added), and did not specify when "New Concept" performed the work at 15 Broad Street pursuant to this agreement. Maxons Restorations' regional manager Christenson identified the same Vendor Agreement similarly, as "a vendor agreement between New Concept Cleaning and Maxons." Id. Ex. C, at 39 (emphases added).

Even if the Vendor Agreement dated October 12, 2004, was by second third party defendant New Concept Environmental Cleaning

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Corp., the Vendor Agreement dated January 5, 2005, superseded the earlier contract. Dominguez was not shown the 2005 Vendor Agreement, but was shown only the superseded contract by New Concept Cleaning Company. The two contracts, combined with Dominguez's testimony concerning the renegotiation of her corporation's obligations to Maxons Restorations "on an annual basis," strongly suggest a series of Vendor Agreements between the parties and that neither the 2004 nor the 2 005 agreement extended until October 15, 2010. Id. Ex. F, at 12-13.

II. THE INDEMNIFICATION PROVISION

The Vendor Agreements dated January 5, 20 05, and before then that were authenticated by one party or another obligated the "Vendor" "to provide sufficient personnel supplies in order to perform the work and/or functions as assigned by Maxons." Id. Ex. H ¶ 1, Ex. K ¶ 1. In those agreements,

To the fullest extent permitted by law, Vendor agrees . to defend, indemnify and hold harmless Maxons . . . against any and all claims . . . arising in whole or in part and in any manner from acts, omissions, breach or default of Subcontractor in connection with performance of any work by Subcontractor . . . .

Id. Ex. H ¶ 6, Ex. K ¶ 6 (emphases added).

This provision's plain terms obligate the Vendor to indemnify Maxons Restorations against claims arising from a Subcontractor's conduct. Quadrant Structured Prods. Co. v. Vertin, ___ N.Y.3d , ___ 2014 NY Slip Op 04114, at *8 (June 10, 2014); J.D'Addario & Co., Inc. v. Embassy Indus., Inc., 20 N.Y.3d 113, 118 (2012); Cole v. Macklowe, 99 A.D.3d 595 (1st Dep't 2012); Nautilus Ins. Co. v. Matthew David Events, Ltd., 69 A.D.3d

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457, 460 (1st Dep't 2010). All the obligations imposed by the Vendor Agreements are on the Vendor, a term used repeatedly throughout the agreements. The signature lines at the end of each Vendor Agreement identify "New Concept Environmental C," London Aff. Ex. H, at 2, and "New Concept Cleaning Company," id. Ex. K, at 2, as the Vendor.

The Vendor Agreements impose no obligations on a Subcontractor, implying that neither party to the agreement is a Subcontractor. It is a term that is distinct from a Vendor and used only in the indemnification provision. Dominguez consistently refers to her corporation as a "vendor for Maxons Restorations." Id. Ex. F, at 10. Although Maxons Restorations' attorney refers to his client as a general contractor, no evidence in the record does; Maxons Restorations' contracts with the condominium building, board of managers, and managing agent refer to Maxons Restorations as simply a contractor; and Christenson testified that: "The building had their own general contractor" separate from his employer. Id. Ex. C, at 25. Thus New Concept Environmental Cleaning's status as a contractor versus a subcontractor may be little different than Maxons Restorations' status as a contractor with the building owner or a subcontractor under another contract between the building and its agent or general contractor. See, e.g., id. Ex. L.

Yet, even if New Concept Environmental Cleaning may have been a subcontractor of general contractor Maxons Restorations, the Vendor Agreements identify the promisor, obligor, and

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indemnitor not as a Subcontractor, but as the Vendor. To interpret a Subcontractor in the Vendor Agreements as distinct from the Vendor New Concept Environmental...