The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff, an employee of defendant CSX Transportation, Inc., commenced this action alleging that he was injured when he slipped and fell on a railroad siding on the premises of defendant General Chemical Corporation. Plaintiff sued CSX pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., while his claims against General Chemical were premised upon a theory of common law negligence. Co-defendants CSX and General Chemical asserted cross-claims against each other as follows: 1) CSX asserted one cross-claim based on contractual indemnification and a second based on common law indemnity, apportionment and contribution; and 2) General Chemical asserted a single cross-claim against CSX on the ground of common law indemnity, apportionment and contribution. In September 2006, plaintiff agreed to settle his claims against CSX for the lump sum payment of $50,000.00. Following his agreement to settle with CSX, the defendants have not been able to agree on resolution of their claims against each other. The motions presently pending before the Court relate to: 1) dismissal of plaintiff's claim against defendant CSX; 2) disposition of the various cross-claims asserted by defendants; and 3) General Chemical's request for leave to amend its answer to CSX's cross-claims.
The parties agree that plaintiff's accident occurred in the course of his duties as a freight conductor with defendant CSX. Plaintiff was injured on February 18, 2004, while attempting to make an air hose connection between two tank cars on a siding owned by defendant General Chemical in Solvay, New York. General Chemical was required to own and maintain this sidetrack for the purpose of receiving freight via railcars which travel on the CSX main track located alongside General Chemical's plant. Defendants had entered into a contract entitled a "Private Sidetrack Agreement" in July 2002 concerning their duties and responsibilities in the area of the sidetrack. The Agreement divided the sidetrack into two parts: 1) the area owned by General Chemical ("Industry's Segment"); and 2) the area owned by CSX ("Railroad's Segment"). In a section entitled "Maintenance," the Agreement provides:
4.1 Railroad and Industry, at their own expense, shall inspect, maintain and renew their respective Segments of the Sidetrack: (A) in accordance with the Federal Railroad Administration Track Safety Standards and (B) in a safe condition consistent with the operating circumstances and amount of use. Additionally, both Industry and Railroad agree to keep their respective Segments free from debris, weeds, potholes, ice or snow . . .. Railroad shall have the right, but not the duty to inspect Industry's Segment.
Agreement ¶ 4. There is no dispute that plaintiff's alleged fall occurred on the "Industry" segment of the sidetrack.
CSX agreed to settle plaintiff's injury claim for the sum of $50,000.00. According to the terms of plaintiff's settlement with defendant CSX, he agreed that he would not "commence or prosecute, or permit to be commenced or prosecuted" any action for damages against CSX arising from the claims released in the settlement agreement. Also, as part of settling with his employer, plaintiff agreed not to return to work. Upon plaintiff's agreement to a partial settlement of his claims, counsel for plaintiff circulated a stipulation of discontinuance concerning discontinuance of plaintiff's first cause of action against defendant CSX. There was no language in said stipulation concerning the separate matter of the defendants' respective cross-claims.
Counsel for defendant General Chemical refused to execute the stipulation of discontinuance on the ground that the terms of the settlement with defendant CSX would prevent plaintiff from testifying in defense of General Chemical on CSX's cross-claim for contractual indemnification. Indeed, General Chemical contends that plaintiff is its primary fact witness insofar as establishing that it was defendant CSX's negligence which caused and/or contributed to plaintiff's accident. Defendant CSX then moved for summary judgment dismissing plaintiff's claims against it based on the settlement agreement and dismissing General Chemical's cross- claim for common law contribution and apportionment pursuant to General Obligations Law § 15-108(b). Based upon its assertion that the negligence of CSX contributed in whole or part to causing plaintiff's accident, General Chemical moved for summary judgment dismissing CSX's cross-claims. General Chemical also moved to amend its answers to both plaintiff's complaint and the cross-claims of CSX. Specifically, General Chemical seeks permission to amend its responsive pleadings to assert the defense that New York General Obligations Law § 15-108(c) bars the cross-claims of defendant CSX.
In response to General Chemical's motion for summary judgment dismissing its cross-claims and for leave to amend its answers to both plaintiff's complaint and CSX's cross-claims, CSX has: 1) agreed that its cross-claim for common law contribution and apportionment against General Chemical should be dismissed pursuant to General Obligations Law § 15-108(c); 2) taken no position on General Chemical's motion to file an amended answer to plaintiff's complaint; 3) opposed General Chemical's motion to file an amended answer to its cross-claims; and 4) moved for summary judgment on its claim for contractual indemnification.
A. Summary Judgment Standard
Summary judgment is appropriate where 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). Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258 (1986). Irrelevant or unnecessary facts do not preclude summary judgment, even when they are in dispute. See id. The moving party bears the initial burden of establishing that there is no genuine issue of material fact to be decided. See Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). With respect to any issue on which the moving party does not bear the burden of proof, it may meet its burden on summary judgment by showing that there is an absence of evidence to support the nonmoving party's case. See id. at 325.
Once the movant meets this initial burden, the nonmoving party must demonstrate that there is a genuine unresolved issue for trial. See Fed. R. Civ. P. 56(e). A trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought, see Ramseur v. Chase Manhattan Bank, 865 F.2d Cir. 460, 465 (2d Cir. 1989); Eastway Constr. Corp. v. City of New York, 762 F.2d Cir. 243, 249 (2d Cir. 1985). It is with these considerations in mind that the Court addresses the parties' motions for summary judgment.
B. Substantive Legal Standard
In the wake of plaintiff's settlement with defendant CSX, the defendants agree that their respective cross-claims against each other are governed by the terms of their contract, which insofar as liability and insurance, provided in pertinent part as follows:
11.1 Except as otherwise provided herein, any and all damages, claims, demands, causes of action suits, expenses (including attorney's fees and costs), judgments and interest whatsoever (hereinafter collectively "Losses") in connection with injury or death of any person or persons whomsoever (including employees, invitees and agents of the parties hereto) or loss or damage to any property whatsoever arising out of or resulting directly or indirectly from the construction, maintenance, repair, use, alteration, operation or removal of the Sidetrack shall be divided between the parties as follows:
(A) Each party shall indemnify and hold the other party harmless from all Losses arising from the indemnifying party's willful or gross negligence, its sole negligence and/or its joint or concurring negligence with a third party.
(B) The parties agree to jointly defend and bear equally between them all Losses arising from their ...