Stewart v. City of Port Jervis

• Decision Date: 19 April 2021
• Docket Number: Index No. EF009924-2019,Mot. Seq. Nos. 3,4
• Citation: 2021 NY Slip Op 33753 (U)
• Parties: DAVID GEOFF STEWART and LAURA ANN KIERSTEAD, Plaintiffs, v. CITY OF PORT JERVIS, Defendant. CITY OF PORT JERVIS, Third-Party Plaintiff, v. HAYWARD BAKER, INC., Third-Party Defendant. CITY OF PORT JERVIS, Second Third-Party Plaintiff, v. DA. COLLINS CONSTRUCTION CO., Second Third-Party Defendant.
• Court: New York Supreme Court

2021 NY Slip Op 33753(U)

DAVID GEOFF STEWART and LAURA ANN KIERSTEAD, Plaintiffs, v. CITY OF PORT JERVIS, Defendant.

CITY OF PORT JERVIS, Third-Party Plaintiff, v. HAYWARD BAKER, INC., Third-Party Defendant.

CITY OF PORT JERVIS, Second Third-Party Plaintiff, v. DA. COLLINS CONSTRUCTION CO., Second Third-Party Defendant.

Index No. EF009924-2019, Mot. Seq. Nos. 3, 4

Supreme Court, Orange County

April 19, 2021

Unpublished Opinion

Motion Date: March 18, 2021

Motion Date: March 19, 2021

Present: HON. CATHERINE M. BARTLETT, AJ.S.C.

HON CATHERINE M. BARTLETT, A.J.S.C.

To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.

The following papers numbered 1 to 8 were read on the motion of D.A. Collins Construction Co. to dismiss the cross claims of Hayward Banker, Inc., and the cross motion of Hayward Baker Inc. for leave to file a verified amended answer with cross claims:

Notice of Motion - Affirmation / Exhibits - Memorandum........................... 1-3

Notice of Cross Motion - Affirmation / Exhibits - Memorandum..................... 4-6

Reply Affirmation - Reply Memorandum........................................ 7-8

Upon the foregoing papers, it is ORDERED that the motions are disposed of as follows:

A. Factual and Procedural Background

Plaintiffs commenced this action against the defendant City of Port Jervis to recover for personal injuries arising out of a construction site accident. The City of Port Jervis commenced a third-party action against Hayward Baker, Inc. ("HBI") a subcontractor on the project, and a second third-party action against D. A. Collins Construction Co. ("D. A. Collins"), the general contractor. After the commencement of the second third-party action, HBI filed a document entitled "Cross Claim Against Second-Third-Party Defendant D.A. Collins Construction Co Inc." asserting claims for contribution and common law indemnification against D.A. Collins.

D.A Collins moves for dismissal of HBI's cross claims on the grounds that (1) HBI's filing was a nullity, and (2) HBI purportedly waived all rights of action against D.A. Collins in the Subcontract Agreement. HBI moves for leave to amend its answer to assert a cross claim for contribution (but not indemnification) against D.A. Collins. Inasmuch as the "Cross Claim" which HBI filed is not a kind of pleading authorized by CPLR §3011, that filing is a nullity. On the other hand, if HBI does have valid cross claims against D.A. Collins, there is no reason why it should not be accorded leave to amend its answer to assert them. Hence, the question presented is whether HBI has valid cross claims against D.A. Collins for common law indemnification or for contribution.

B. The Standard Governing CPLR §3211(a)(1) Motions To Dismiss Based On Documentary Evidence

A motion to dismiss pursuant to CPLR §3211(a)(1) based upon documentary evidence maybe granted only where the evidence "utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law..." Goshen v. Mutual Life Insurance Company of New York, 98 N.Y.2d 314, 326 (2002); 25-01 Newkirk Avenue, LLC v. Everest National Ins. Co., 127 AD33d 850, 851 (2d Dept. 2015); Louzoun v. Kroll Moss and Kroll, LLP, 113 A.D.3d 600, 601 (2d Dept. 2014). See, Leon v. Martinez supra, 84 N.Y.2d at 88; Dodge v. King, 19 A.D.3d 359,360 (2d Dept. 2005) (under CPLR 321 l[a][l] "the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim").

C. The Subcontract Agreement

The Subcontract Agreement between DA. Collins as general contractor and HBI as subcontractor provides in pertinent part as follows: INDEMNIFICATION

81. Subcontractor agrees to protect, defend, indemnify and save harmless, to the fullest extent permitted by law, the Contractor and the Owner against any and all liabilities, judgments, damages, penalties, fines, expenses and costs, including attorneys' fees, caused or incurred.. .for any physical injury or death occurring to any person, all to the extent arising in whole or in part, directly or indirectly from or in connection with the neglect, fault, act or omission, failure to act, on the part of Subcontractor, its agents, employees or lower tier subcontractors, suppliers or materialmen.

82. This indemnification includes, but is not limited to, any claims, damages, loss, liability or expense of any kind, which is in any way connected with Subcontractor's performance of the Work and which is based upon a breach of statutory duty or obligation on the part of the Contractor where the Contractor is not found to have committed a negligent act or omission. Subcontractor agrees to purchase and maintain such insurance as will protect it and the Contractor, including contractual coverage....

Annexed as "Exhibit C" to the Subcontract Agreement is a document entitled "Insurance Requirements." It states in pertinent part:

INSURANCE. The Subcontractor shall procure and maintain, at its own sole cost and expense, and shall maintain in force at all times during the term of this Agreement including any extensions or renewals until Agreement Final Acceptance, the policies of insurance covering all operations under the Agreement whether performed by it or its Second Tier Subcontractors as herein below set forth....

A. Conditions Applicable to Insurance. All policies of insurance required by this Agreement must meet the following requirements:

6. Waiver of Subrogation. As to every type and form of insurance coverage required from the Subcontractor, there shall be no right of subrogation against D. A. Collins....

9. Waiver oflndemnities. The Subcontractor waives any right of action it and/or its insurance carrier might have against the Contractor or Owner (including its employees, officers, or agents) for any loss that is covered by a policy of insurance that is required by this Agreement. The Subcontractor waives any right of action it and/or its insurance carrier might have against the Contractor or Owner (including its employees, officers, or agents) for any loss, whether or not such loss is insured.

D. HBI Has No Valid Claim Against D. A. Collins For Common Law Indemnification

The Subcontract Agreement provides for contractual indemnification of D. A. Collins by HBI. This is a "one way obligation" to indemnify, flowing by contract from HBI as indemnitor to D. A. Collins. As a matter of law, any reciprocal common law obligation by D. A. Collins to indemnify HBI is extinguished. See, Lamela v. Verticon, Ltd., 185 A.D.3d 1319,1322 (3d Dept. 2020) (citing Service Sign Erectors Co. v. Allied Outdoor Adv., 175 A.D.2d 761, 763 [1991], appeal dismissed 79 N.Y.2d 823 [1991], Iv denied 79 N.Y.2d 754 [1992]; Rosado v. Proctor & Schwartz, 106 A.D.2d 27, 30 [1984], aff'd 66 N.Y.2d 21 [1985]).

Therefore HBI has no valid cross claim against D. A. Collins for common law...