Opinion
12322 Index No. 305117/15 Case No. 2020-01012
11-10-2020
Marion PELOTE, Plaintiff, v. BEREAN APARTMENTS HOUSING DEVELOPMENT FUND COMPANY, INC., et al., Defendants. Berean Apartments, LLC, Third–Party Plaintiff–Respondent, v. Procida Construction Corp., Third–Party Defendant–Appellant.
Brody, O'Connor & O'Connor, New York (Iain McLeod of counsel), for appellant. Lydecker Diaz, Melville (Robert Graves–Grimal of counsel), for respondent.
Brody, O'Connor & O'Connor, New York (Iain McLeod of counsel), for appellant.
Lydecker Diaz, Melville (Robert Graves–Grimal of counsel), for respondent.
Friedman, J.P., Renwick, Oing, Mendez, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about December 19, 2019, which grant third-party plaintiff Berean Apartments, LLC's (Berean) motion for summary judgment on its contractual indemnification claim against third-party defendant Procida Construction Corp. (Procida), unanimously modified, to the extent of conditioning the grant of summary judgment upon a finding of negligence on the part of Procida, and otherwise affirmed, without costs.
The indemnification provision in the contract between Berean and Procida was triggered by the fact that the alleged accident arose out of Procida's work (see Torres v. Morse Diesel Intl., Inc., 14 A.D.3d 401, 403, 788 N.Y.S.2d 97 [1st Dept. 2005] ). The indemnification provision is clear and unambiguous, and demonstrates an intention to indemnify (see generally Karwowski v. 1407 Broadway Real Estate, LLC, 160 A.D.3d 82, 87–88, 73 N.Y.S.3d 30 [1st Dept. 2018] ).
The terms of the contract, as well as the testimony of both parties' representatives, also established that it was Procida's duty to maintain the site at the time the alleged accident occurred. Berean demonstrated that it was not involved in the construction work itself, and Procida identified no evidence of negligence on the part of Berean (see Sanchez v. Triton Constr. Co., LLC, 184 A.D.3d 501, 503, 126 N.Y.S.3d 451 [1st Dept. 2020] ). However, the indemnification provision here provides that Procida would indemnify Berean for any claims, damages, losses, and expenses "arising out of or resulting from performance of the Work," but only to the extent those claims were caused by Procida's or its subcontractors' negligent acts. In view of this provision, the grant of summary judgment in favor of Berean on its third-party action against Procida for contractual indemnification must be conditioned upon a finding of Procida's negligence (see Rivera v. Urban Health Plan, Inc., 9 A.D.3d 322, 323, 781 N.Y.S.2d 316 [1st Dept. 2004] ; Crimi v. Neves Associates, 306 A.D.2d 152, 761 N.Y.S.2d 186 [1st Dept. 2003] ; Zeigler –Bonds v. Structure Tone, 245 A.D.2d 80, 81, 664 N.Y.S.2d 799 [1st Dept. 1997] ).