Opinion
Nos. 1234, Index 106409/04.
June 5, 2007.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered May 3, 2006, which, to the extent appealed from, granted the motions of third-party defendants for summary judgment insofar as to dismiss certain third-party claims for contractual indemnification and for breach of contract for failure to procure insurance, unanimously affirmed, with costs.
London Fischer LLP, New York (Robert H. Baumgarten of counsel), for appellants.
Simmons, Jannace Stagg, LLP, Syosset (Michael D. Kern of counsel), for Masco Contractor Services East, Inc. and Superior Contracting Corporation, respondents.
Guararra Zaitz, New York (Michael J. Guararra of counsel), for Ritter Contracting, Inc., respondent.
Before: Tom, J.P., Mazzarelli, Andrias, Williams and McGuire, JJ.
The third-party claims at issue, for breach of contract and contractual indemnification, were properly dismissed since the promises upon which those claims are based are found in the main agreement, to which third-party defendants were not signatories. While it is true that the construction subcontracts signed by third-party defendants incorporated the main agreement by reference, "[u]nder New York law, incorporation clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character and manner of the work to be performed by the subcontractor" ( Bussanich v 310 E. 55th St. Tenants, 282 AD2d 243, 245; see Goncalves v 515 Park Ave. Condominium, 39 AD3d 262).