Torres v. Accumanage, LLC

210 A.D.3d 718

177 N.Y.S.3d 644

Carlos O. TORRES, plaintiff-respondent-appellant,

v.ACCUMANAGE, LLC, defendant third-party plaintiff-appellant, et al., defendant;

NJM Construction, Inc., third-party defendant-respondent.

2018–01624

Index No. 602097/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 30, 2021

November 2, 2022

Mulholland, Minion, Duffy, Davey, McNiff & Beyrer, Williston Park, NY (Patrick A. Delgado and Eric Bailey of counsel), for defendant third-party plaintiff-appellant.

Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Lauren E. Bryant ], of counsel), for plaintiff-respondent-appellant.

Benzulli Law Firm, LLP, White Plains, NY (John V. Tait of counsel), for third-party defendant-respondent.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, LARA J. GENOVESI, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), dated December 21, 2017. The order, insofar as appealed from, denied those branches of the defendant third-party plaintiff's motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 241(6) insofar as asserted against it, and granted that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification. The order, insofar as cross-appealed from, denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant third-party plaintiff.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof denying that branch of the defendant third-party plaintiff's motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against it, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the defendant third-party plaintiff, payable by the third-party defendant and the plaintiff.

The defendant third-party plaintiff, Accumanage, LLC (hereinafter Accumanage), was the construction manager on the construction of a house on premises owned by the defendant Kerriann Brewer. The plaintiff was employed by NJM Construction, Inc. (hereinafter NJM), a framing subcontractor. At the time of the accident, the plaintiff was working on the exterior of a detached garage on the premises. According to the plaintiff, he was walking along a scaffold surrounding the garage when the platform upon which he was standing suddenly collapsed. However, the president of NJM and a member of Accumanage were informed that the plaintiff was on a ladder at the time of the accident.

The plaintiff commenced this action against Accumanage and Brewer. Accumanage commenced a third-party action against NJM, inter alia, for contractual indemnification. NJM moved, among other things, for summary judgment dismissing the third-party cause of action for contractual indemnification. Accumanage moved, inter alia, for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 241(6) insofar as asserted against it. The plaintiff moved, among other things, for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against Accumanage. The Supreme Court, inter alia, granted that branch of NJM's motion, denied those branches of Accumanage's motion, and denied that branch of the plaintiff's motion. Accumanage appeals, and the plaintiff cross-appeals.

The Supreme Court erred in granting that branch of NJM's motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification. "The right to contractual indemnification depends upon the specific language of the contract" ( George v. Marshalls of MA, Inc., 61 A.D.3d 925, 930, 878 N.Y.S.2d 143 ). "When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed" ( Hooper Assoc. v. AGS Computers, Inc., 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903 ; see Lombardo v. Tag Ct. Sq., LLC, 126 A.D.3d 949, 950, 7 N.Y.S.3d 187 ). "Thus, an indemnification provision may not apply to injuries caused by work that was performed outside of the contractual scope intended by the parties" ( Burhmaster v. CRM Rental Mgt., Inc., 166 A.D.3d 1130, 1134, 86 N.Y.S.3d 322 ; see Lombardo v. Tag Ct. Sq., LLC, 126 A.D.3d at 951, 7 N.Y.S.3d 187 ). "Nevertheless, a contractual requirement for written modifications of the scope of work may be waived when the conduct of the parties demonstrates an indisputable mutual departure from the written agreement and the changes were clearly requested by [the] plaintiff and executed by [the] defendant" ( Burhmaster v. CRM Rental Mgt., Inc., 166 A.D.3d at 1134, 86 N.Y.S.3d 322 [internal quotation marks omitted]; see generally T & N W. Galla Pizzeria v. CF White Plains Assoc., 185 A.D.2d 270, 272, 586 N.Y.S.2d 266 ).

The contractual indemnification provision at issue here required NJM to indemnify Accumanage for any claims "directly or indirectly caused by [NJM's] breach of the Contract, its negligence, gross negligence, intentional misconduct, nonfeasance or inaction in the performance of the Contract and/or [NJM's] trade." It is undisputed that the scope of NJM's work as set forth in its contract with Accumanage was limited to framing and exterior trim for the house and that there was no mention of the garage. It is further undisputed that any changes to the scope of the contract were required to be made in a written change order, and there is no evidence that any such change order was issued. However, NJM failed to eliminate a triable issue of fact regarding whether the parties waived the contractual requirement for written modifications of the scope of work as the evidence demonstrated that Accumanage requested NJM to perform work on the exterior of the garage and that NJM executed such work (see Burhmaster v. CRM Rental Mgt., Inc., 166 A.D.3d at 1134, 86 N.Y.S.3d 322 ). Moreover, it is undisputed that NJM's work on the garage was within the scope of its "trade," which would potentially bring the plaintiff's accident within the scope of the subject contractual indemnification provision. NJM failed to eliminate a triable issue of fact as to whether it had completed its work on the house prior to being hired to work on the garage such that the contract had expired, or whether NJM had yet to complete its original scope of work pursuant to the contract at the time it began working on the garage such that the contract remained in effect at the time of the accident. Accordingly, the Supreme Court should have denied that branch of NJM's motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification because NJM failed to eliminate all triable issues of fact as to whether the accident was caused by its "negligence, gross negligence, intentional misconduct, nonfeasance or inaction in the performance of the Contract and/or [NJM's] trade," pursuant to the terms of the subject indemnification provision (see Caban v. Plaza Constr. Corp., 153 A.D.3d 488, 490, 61 N.Y.S.3d 47 ).

The Supreme Court properly denied that branch of...