Vasquez v. Manhattan Coll.
| Docket Number | 1523,Index No. 28636/19,Case No. 2023-01676 |
| Decision Date | 25 January 2024 |
| Citation | 2024 NY Slip Op 00365 |
| Parties | Christian Olmedo Vasquez, Plaintiff-Respondent, v. Manhattan College, Defendant-Appellant, Pavarini North East Construction Co., Inc., Defendant. Manhattan College, Third-Party Plaintiff-Appellant, v. Environmental Maintenance Contractors, Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Goldberg Segalla, LLP, White Plains (William T. O'Connell of counsel), for appellant.
Gallo Vitucci Klar LLP, New York (C. Briggs Johnson of counsel) for Environmental Maintenance Contractors, respondent.
Before: Moulton, J.P., Kapnick, Mendez, Higgitt, O'Neill Levy, JJ.
Order Supreme Court, Bronx County (Lucindo Suarez, J.), entered September 12, 2022, which denied defendant/third-party plaintiff Manhattan College's motion to renew third-party defendant Environmental Maintenance Contractors' (EMC) motion for summary judgment dismissing Manhattan College's contractual indemnification claim against it unanimously affirmed, without costs.
A motion for leave to renew a prior motion must be based upon "new facts not offered on the prior motion that would change the prior determination" and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR § 2221[e]; see also Nassau County v Metropolitan Transp. Auth., 99 A.D.3d 617, 618-619 [1st Dept 2012], lv denied in part, dismissed in part 21 N.Y.3d 921 [2013]). Here, the motion court properly determined that Manhattan College, as property owner, provided reasonable justification for not timely submitting the 2018 AIA Contract it had entered into with EMC to provide asbestos remediation services in opposition to EMC's prediscovery motion to dismiss the third-party claims (see Tishman Constr. Corp. of N.Y. v City of New York, 280 A.D.2d 374, 376 [1st Dept 2001]). When it was unable to locate and depose its former representative who had negotiated the two asbestos remediation agreements with EMC in 2018 and 2019, Manhattan College had requested an adjournment of EMC's motion, which EMC denied.
Nevertheless, the renewal motion, which requested that the court consider the terms of the parties' 2018 AIA Contract, was providently denied where the terms of such agreement did not govern the work plaintiff engaged in at the time of his injury. The work plaintiff was engaged in at the time of his accident was set forth in the "2019 Proposal" that was separately negotiated by EMC and the college's former representative and by its unambiguous terms did not provide for the indemnification of Manhattan College by EMC. The language in the 2019 proposal did not explicitly state that Manhattan College had a right to indemnification (Millennium Holdings LLC v Glidden Co., 146 A.D.3d 539, 545 [1st Dept 2017]["The indemnity obligation will be strictly construed, and additional obligations may not be imposed beyond the explicit and unambiguous terms of the agreement"]). The 2019 Proposal provides for asbestos removal work to be done in another portion of the building, has its own project cost and indemnification provision, and makes no reference to the parties' 2018 AIA Contract. Therefore, the motion court's prior determination that the parties' 2019 Proposal governed the work plaintiff was performing at the time of his injury and that this separate agreement did not provide for the indemnification of Manhattan College by EMC remains undisturbed by the existence of the parties' 2018 AIA Contract.
Even assuming arguendo that the indemnification clause in...
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