The opinion of the court was delivered by: John Gleeson, United States District Judge
On February 15, 2004, the right wing tip of a Virgin Atlantic Airways ("Virgin") aircraft collided with the tail of a parked North American Airlines ("NAA") aircraft while the Virgin plane was being towed towards a departure gate at John F. Kennedy International Airport ("JFK airport"). NAA has sued Virgin in this court, where subject matter jurisdiction is based on diversity of citizenship. In a third-party complaint, Virgin has sued Aircraft Services International, Inc. ("ASI"), and Mach II Maintenance Corp. ("Mach II"), the two companies that were involved in the towing operation, who in turn have entered cross-complaints against one another.*fn1 I have before me various motions for summary judgment. For the reasons set forth below, I (1) deny NAA's motion for summary judgment against Virgin; (2) deny in part and grant in part Virgin's motion for summary judgment against ASI; (3) deny in part and grant in part Mach II's motion for summary judgment against ASI.
On the night of February 15, 2004, shortly after 8 p.m., a Virgin A340 aircraft was being towed from a parking area, or "hardstand," to a Terminal 4 departure gate at JFK airport. Before the tow, the Virgin aircraft was parked in hardstand number 76, with its tail facing Taxiway K. A double white line marks the boundary between the hardstand and the taxiway. At the center of the taxiway is a solid yellow line that contains imbedded blue lights. In a tow like the one in question, the tug driver attaches the front of a tug to the front of the aircraft by way of a tow bar, so that the aircraft and the tug are nose to nose. The tug driver then listens to a headset for a signal from the "brake rider" -- who sits in the cockpit of the aircraft during the tow -- that the control tower has given clearance for the tow to begin.
When moving an aircraft out of a hardstand and onto the taxiway, the tug driver first pushes the aircraft. During the push, the tug is driving forward and the aircraft is moving backwards. At this stage of the tow, called the "push-back," "wing walkers" typically walk near the wing tips to ensure that the wings do not collide with any objects, and signal the tug driver with eye contact and florescent wands. With the assistance of the wing walkers, the tug driver pushes the aircraft out of the hardstand until the aircraft has reached the yellow centerline of the taxiway, at which time the tug driver may begin to pull the aircraft forward down the center of the taxiway.
On February 15, 2004, the personnel involved in the tow included two ASI employees and one Mach II employee. Winston George, an employee of ASI, was driving the tug. Glenroy Phillips, also an ASI employee, was working as a wing walker under the left wing of the Virgin aircraft. The ASI supervisor that night determined that only one wing walker was necessary for the tow, since hardstand number 77, which was adjacent to the Virgin aircraft's right wing, was empty. Finally, Guillermo Rojas was employed as a brake rider for Mach II, and was sitting in the cockpit.
The tow began normally, with a signal from Rojas that the control tower had given clearance for the tow to begin. George began to push the aircraft out onto the taxiway. Shortly after George began to push, Rojas received direction from the control tower that the tow should stop temporarily so that another aircraft could pass on the taxiway. Rojas relayed the message to George, who stopped for several minutes until he received clearance to begin the tow again. Once George had pushed the nose of the aircraft to what he believed was the yellow center line of the taxiway, he shifted gears, put the tug into reverse, and began to pull the aircraft down the taxiway. When George stopped to shift gears, Phillips, the wing walker, left the scene. In order to pull the aircraft in a forward direction, George drove the tug in reverse by looking over his right shoulder and steering with his left hand. After approximately 100 feet, the right wing tip of the Virgin aircraft collided with the tail of an NAA aircraft that was parked in hardstand number 75.*fn2
George either (1) mistook the double white lines on the side of the taxiway for the yellow center line and therefore began to pull the aircraft forward prematurely, or (2) reached the yellow center line and began to pull from there, but strayed from the center line while pulling the aircraft. The evidence before me does not conclusively establish which of these two scenarios took place. See JFK International Airport Incident/Accident Report Form ("The ASIG push back driver, [Winston George], stated that he mistook the double white line that outlines the hardstand for the K centerline."); contra George Depo, 74 (stating that he pushed the Virgin aircraft back to the center yellow line). However, the answer to that question does not affect the liability of the parties.
According to NAA, its aircraft suffered extensive damage to its right rear stabilizer, causing the aircraft to be grounded for six days. Virgin claims that its aircraft sustained $145,702.97 in damages, and that Virgin incurred an additional $66,414.87 in costs associated with canceling the flight that evening, booking passengers on alternative flights, and providing food and accommodation for passengers.
On January 10, 2005 NAA filed a complaint against Virgin, claiming liability under common law and statutory theories of negligence for damages to the NAA aircraft as well as for consequential damages suffered by NAA. On April 7, 2005, Virgin filed a third-party complaint against both ASI and Mach II, alleging that if Virgin is held liable for the damages suffered by NAA or its employees who were on board the NAA aircraft during the collision,*fn3 then Virgin is entitled to full indemnity, or to contribution, from both ASI and Mach II. Virgin also alleges that it is entitled to collect from ASI for its actual and consequential losses that resulted from the physical damage to its own aircraft, either in full or in proportion to ASI's level of culpability. Finally, Virgin alleges that the contractual agreement between ASI and Virgin requires ASI to indemnify Virgin for the damage that ASI's negligence caused to the Virgin aircraft.*fn4
On June 1, 2005, Mach II filed cross-claims against ASI, and on June 29, 2005, ASI filed cross-claims against Mach II, which were amended on September 6, 2005. Mach II alleges that it is entitled to contribution or to full indemnity from ASI in the event that it is held liable to Virgin for the damages suffered by NAA or its employees. ASI alleges that it is entitled to contribution or to full indemnity from Mach II in the event that ASI is held liable to Virgin for the damages suffered by NAA or its employees, or for the damages suffered by Virgin itself.
Before me are three motions for summary judgment.
1. NAA's Motion for Summary Judgment Against Virgin
NAA has moved for summary judgment on both of its liability claims against Virgin, arguing that Virgin is statutorily liable to NAA for injuries to NAA's property pursuant to New York General Business Law § 251, and also that Virgin is liable pursuant to a common law theory of negligence for all damages resulting from the collision.
2. Virgin's Motion for Summary Judgment Against ASI
Virgin has moved for summary judgment against ASI on Virgin's claims that (1) based on ASI's negligence, which was the sole cause of the accident, Virgin is entitled to full indemnity from ASI for the damages suffered by NAA or its employees who were on board the NAA aircraft during the collision (Claim 1 of the third-party complaint); (2) based on ASI's negligence, which was the sole cause of the accident, Virgin is entitled to recover from ASI for the actual and consequential damages that Virgin incurred as a result of the damage to its own aircraft (Claim 3 of the third-party complaint); (3) based on ASI's negligence, which was the partial cause of the accident, Virgin is entitled to recover from ASI for the actual and consequential damages that it incurred as a result of the damage to its own aircraft (Claim 4 of the third-party complaint)*fn5 ; (4) based upon the Virgin/ASI Agreement, Virgin is entitled to recover from ASI for the actual and consequential losses associated with the damage sustained by the Virgin aircraft (Claim 5 of the third-party complaint).
3. Mach II's Motion for Summary Judgment Against ASI
Mach II seeks summary judgment on ASI's four cross-claims against Mach II, arguing that because Mach II performed its brake rider duties without fault, any future effort on ASI's part to seek indemnification or contribution from Mach II must fail.
A. The Standard of Review
Summary judgment shall be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Courts must determine whether or not a genuine issue of material fact exists by examining the evidence in the light most favorable to the non-moving party. See Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 253 (2d Cir. 2002). On summary judgment, "the evidence of the non-movant is to be believed." Id. at 254 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Pursuant to those principles, I am primarily concerned at this stage with determining "whether there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. An alleged factual dispute regarding immaterial or minor facts between the parties will not defeat an otherwise properly supported motion for summary judgment. See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir.1990). Moreover, the non-moving party may not defeat a summary judgment motion by presenting a "mere scintilla" of evidence in support of its own position. Anderson, 477 U.S. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (Non-movant "must do more ...