Ottaviano v. GENEX COOPERATIVE, INC.

• Decision Date: 02 May 2003
• Court: New York Supreme Court — Appellate Division
• Parties: MICHAEL C. OTTAVIANO, Plaintiff,<BR>v.<BR>GENEX COOPERATIVE, INC., et al., Defendants.<BR>GENEX COOPERATIVE, INC., Third-Party Plaintiff-Respondent,<BR>v.<BR>PRAXAIR, INC., Third-Party Defendant-Appellant. (Appeal No. 2.)

305 A.D.2d 1010

758 N.Y.S.2d 753

MICHAEL C. OTTAVIANO, Plaintiff,

v.GENEX COOPERATIVE, INC., et al., Defendants.

GENEX COOPERATIVE, INC., Third-Party Plaintiff-Respondent,

v.PRAXAIR, INC., Third-Party Defendant-Appellant. (Appeal No. 2.)

Decided May 2, 2003.

Present — Pigott, Jr., P.J., Green, Pine, Burns and Gorski, JJ.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by providing that third-party defendant is not required to pay the fees, costs and expenses incurred by defendant-third-party plaintiff in establishing its right to indemnification and as modified the order is affirmed without costs.

Memorandum:

Plaintiff, an employee of third-party defendant, Praxair, Inc. (Praxair), commenced this action to recover damages for injuries he sustained when a storage tank owned by defendant third-party plaintiff, Genex Cooperative, Inc. (Genex), ruptured. At the time of the accident, plaintiff was delivering liquid nitrogen to Genex on behalf of Praxair. Genex commenced a third-party action against Praxair seeking contribution and common-law and contractual indemnification. Supreme Court properly granted the motion of Genex for summary judgment on its cause of action seeking contractual indemnification. The contract between Genex and Praxair's predecessor corporations, which is governed by Connecticut law, "is to be interpreted according to the intent expressed in its language" (Levine v Massey, 232 Conn 272, 278, 654 A2d 737, 740 [1995]). In the "Liability" section of the contract, Praxair agreed to indemnify and hold Genex harmless from any claims arising from injury to a Praxair employee engaged in any activity related to the liquid nitrogen supplied by Praxair under the contract, regardless of whether that injury "is claimed to have been caused by, resulted from, or was in any way connected with the negligence of" Genex. Thus, under the clear and unambiguous language of the contract, Praxair agreed to indemnify and hold Genex harmless from any liability, including liability for damages resulting from Genex's own negligence (see Burkle v Car & Truck Leasing Co., 1 Conn App 54, 56-57, 467 A2d 1255, 1257 [1983]; Laudano v General Motors Corp., 34 Conn Supp 684, 688-689, 388 A2d 842, 845 [1977]). We reject Praxair's contention that the parties did not intend the terms of the contract, which originally applied to Genex's facility in Ithaca, to extend to the facility in Enfield where the accident...