Opinion
13736, 591183/09
12-09-2014
NEW YORK CITY HEALTH & HOSPITALS CORPORATION, et al., Third–Party Plaintiffs–Appellants, v. CONSTRUCTION FORCE SERVICES, INC., et al., Third–Party Defendants–Respondents, Construction Force Services, LLC, Third–Party Defendant.
Zachary W. Carter, Corporation Counsel, New York (Benjamin Welikson of counsel), for appellant. Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for Construction Force Services, Inc., respondent. Quirk and Bakalor, P.C., Garden City (Debra Seidman of counsel), for C–Force System LLC, respondent.
Zachary W. Carter, Corporation Counsel, New York (Benjamin Welikson of counsel), for appellant.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for Construction Force Services, Inc., respondent.
Quirk and Bakalor, P.C., Garden City (Debra Seidman of counsel), for C–Force System LLC, respondent.
MAZZARELLI, J.P., RENWICK, ANDRIAS, SAXE, KAPNICK, JJ.
Opinion Order, Supreme Court, New York County (Kathryn Freed, J.), entered August 19, 2013, which granted third-party defendants' motions for summary judgment dismissing the third-party complaint, unanimously reversed, on the law, without costs, and the motions denied.
The testimony provided by the third-party defendants that there was no agreement to procure insurance for third-party plaintiffs New York City Health & Hospitals Corporation (HHC) and/or the City established their prima facie entitlement to summary judgment (see A & E Stores, Inc. v. U.S. Team, Inc., 63 A.D.3d 486, 486, 880 N.Y.S.2d 634 [1st Dept.2009] ). The testimony provided by HHC's employee that it was his understanding that CFS Inc. would “provide insurance for the employees working on our sites,” as well as the testimony of CFS Inc.'s insurance broker that its issuance of a certificate of insurance listing HHC as an additional insured to CFS Inc. demonstrated that CFS Inc. specifically requested such certificate, standing alone, may not have been sufficient to defeat summary judgment (see Financial Structures Ltd. v. UBS AG and UBS Sec. LLC, 2014 N.Y. Slip Op. 30919[U], *7–9, 2014 WL 1384482 [Sup.Ct., N.Y. County 2014] ).
Yet, considering the totality of the circumstances (see Brown Bros. Elec. Contrs. v. Beam Constr. Corp., 41 N.Y.2d 397, 400, 393 N.Y.S.2d 350, 361 N.E.2d 999 [1977] ), this testimony, combined with certificates of insurance since 2004 stating that HHC was an additional insured under the third-party defendant's general liability insurance policy, and labor proposals since 1997 with “trade rates” that included an insurance item, raised issues of fact as to the existence of an oral agreement to procure insurance for HHC (see Travelers Indem. Co. of Am. v. Royal Ins. Co. of Am., 22 A.D.3d 252, 253, 802 N.Y.S.2d 125 [1st Dept.2005] ).
Although the parties provided conflicting testimony regarding the meaning of the “insurance term” in the labor proposals, “the question of contractual intent is largely one of fact” (Martin H. Bauman Assoc. v. H & M Intl. Transp., 171 A.D.2d 479, 483, 567 N.Y.S.2d 404 [1st Dept.1991] ), and disputes over the terms of an oral contract often turn on issues of credibility (see U. K. Cable Ventures v. Bell Atl. Invs., 232 A.D.2d 294, 294–295, 648 N.Y.S.2d 564 [1st Dept.1996], lv. dismissed 89 N.Y.2d 981, 656 N.Y.S.2d 739, 678 N.E.2d 1355 [1997] ), thereby precluding summary judgment.
Sufficient evidence also exists to hold the third-party defendants liable as a single entity (Shisgal v. Brown, 21 A.D.3d 845, 847–848, 801 N.Y.S.2d 581 [1st Dept.2005] ).