Opinion
359 CA 14-01454
03-20-2015
Ronald BEASOCK, Plaintiff, v. CANISIUS COLLEGE, Defendant. Canisius College, Third–Party Plaintiff–Respondent, v. Active Workforce, Inc., Third–Party Defendant–Appellant.
Trevett Cristo Salzer & Andolina, P.C., Rochester (Daniel P. Debolt of Counsel), for Third–Party Defendant–Appellant. Smith, Sovik, Kendrick & Sugnet, P.C., Buffalo (Eric S. Bernhardt of Counsel), for Third–Party Plaintiff–Respondent.
Trevett Cristo Salzer & Andolina, P.C., Rochester (Daniel P. Debolt of Counsel), for Third–Party Defendant–Appellant.
Smith, Sovik, Kendrick & Sugnet, P.C., Buffalo (Eric S. Bernhardt of Counsel), for Third–Party Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, and SCONIERS, JJ.
Opinion
MEMORANDUM:Plaintiff commenced this common-law negligence and Labor Law action against defendant-third-party plaintiff, Canisius College (Canisius). Canisius in turn commenced a third-party action against third-party defendant Active Workforce, Inc. (Active), asserting, inter alia, a cause of action for contractual indemnification based on a contract between Active and Lehigh Construction Group. Canisius moved for partial summary judgment on that cause of action, and Active cross-moved for summary judgment dismissing the third-party complaint. Contrary to Active's contention, we conclude that Supreme Court properly granted the motion and denied the cross motion.
Active's contention that Canisius is not an intended third-party beneficiary of the contract between Active and Lehigh Construction Group is without merit. In support of its motion, Canisius established “ ‘(1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [Canisius's] benefit and (3) that the benefit to [Canisius] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [Canisius] if the benefit is lost’ ” (Mendel v. Henry Phipps Plaza W., Inc., 6 N.Y.3d 783, 786, 811 N.Y.S.2d 294, 844 N.E.2d 748, quoting Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 336, 464 N.Y.S.2d 712, 451 N.E.2d 459 ; see State of Cal. Pub. Employees' Retirement Sys. v. Shearman & Sterling, 95 N.Y.2d 427, 434–435, 718 N.Y.S.2d 256, 741 N.E.2d 101 ), and Active failed to raise an issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). Active contends that there is an issue of fact whether the second prong of the Burns Jackson test was met here, because the contract at issue merely refers to “the Owner” rather than referring to Canisius by name. That contention is without merit. “The performance by [Active] ‘was manifestly to be to the direct benefit of the owner of the development. It is almost inconceivable that [Active, which] render[s its] services in connection with a major construction project[,] would not contemplate that the performance of [its] contractual obligations would ultimately benefit the owner of that development’ ” ( R.H. Sanbar Projects v. Gruzen Partnership, 148 A.D.2d 316, 319, 538 N.Y.S.2d 532 ; see generally Logan–Baldwin v. L.S.M. Gen. Contrs., Inc., 94 A.D.3d 1466, 1468, 942 N.Y.S.2d 718 ; Brownell Steel, Inc. v. Great Am. Ins. Co., 28 A.D.3d 842, 843, 813 N.Y.S.2d 550 ).
Active's contention that it owes no contractual duty to Canisius because Active and Canisius signed contracts with different entities is raised for the first time on appeal and thus is not properly before us (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 ). Active's contention that the indemnification agreement at issue violates General Obligations Law § 5–322.1 is also raised for the first time on appeal and thus is also not properly before us (see Ciesinski, 202 A.D.2d at 985, 609 N.Y.S.2d 745 ). We have considered Active's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.