The opinion of the court was delivered by: Siragusa, J.
This diversity action for personal injury is now before the Court on Defendants'/Third Party Plaintiffs' motion (Docket No. 25) seeking summary judgment against Third Party Defendant for contractual indemnification and breach of contract. For the reasons stated below, the application is granted in part and denied in part.
Plaintiff was injured while an employee for Davey Tree Expert Company ("Davy Tree"), one of the Third Party Defendants in this case. Davey Tree was under contact with CSX Transportation, Inc. ("CSX") to clean up an abandoned railroad yard in Rochester, New York. Plaintiff incurred his injuries when he fell into a hole while cleaning up that yard. The issue before the Court on this motion is whether the contract between CSX and Davey Tree required the latter to obtain insurance for CSX, and whether the contract requires Davey Tree to indemnify and hold CSX harmless for the injury to Plaintiff.
This case, which began in New York State Supreme Court, Seventh Judicial District, was removed to this Court by CSX on August 15, 2007. (Notice of Removal 1.) In the removal, CSX noted that, "New York Central Lines, LLC, is now, and was at the time of the state court filing, an inactive corporation organized under the laws of Delaware." (Id., at 2.) CSX also stated that CSX Transportation, Inc., and CSX Corporation are both incorporated in the Commonwealth of Virginia, and both have their principal place of business in Jacksonville, Florida. (Id.) Plaintiff is a resident of New York. (Compl. ¶ 1.) On June 13, 2008, CSX filed a Third Party Complaint bringing Davey Tree into the case. In that Third Party Complaint, CSX alleges that Davey Tree and Lawn Care, and Davey Tree Surgery Company as well as Davey Tree Expert Company, are all incorporated in Kent, Ohio, with a place of business in Rochester, New York.*fn1 (Third Party Compl. ¶¶ 2--8.)
In its motion for summary judgment, CSX did not include the required statement of material facts not in dispute. W.D.N.Y. Loc. R. Civ. P. 56.1. On February 25, 2010, nine and a half months after filing their motion for summary judgment, CSX finally filed a statement of facts. (Docket # 40.). During that period, the parties attempted to resolve the case before the Honorable Jonathan W. Feldman, U.S. Magistrate Judge. In a letter dated February 12, 2010, counsel for CSX noted her failure to comply with Rule 56.1, and sought permission to file a statement of facts, which application the Court granted on February 18, 2010.*fn2
The following facts are undisputed, except where noted. At approximately 10:00 a.m. on October 20, 2004, Plaintiff claims he tripped and his leg fell into a hole on CSX-owned property while performing work for Davey Tree. The Plaintiff began working for Third-Party Defendant, Davey Tree in 1999 as a laborer. On or about October 16, 2004, CSX entered into a contract with Davey Tree for certain work to be performed at or near Norton Street near Clifford Avenue ("Norton Street job site"). The Contract required Davey Tree to cut the grass and weeds and remove the trash and debris from the Norton Street job site. Additionally, Davey Tree was also required to provide legal disposition of any violations. The day before the accident, Plaintiff was advised by his supervisor that the employees needed to clear the brush, cut down the vegetation and clean up any garbage on the property. Plaintiff's injury occurred on his second day on the Norton Street job site, while picking up debris. Plaintiff testified at a pretrial deposition that while on the Norton Street job site working for Davey Tree, he never received directions from CSX employees and that he was an employee of Davey Tree on the day of his injury. Robert Nichols ("Nichols"), another Davey Tree employee at the Norton Street job site, testified at a pretrial deposition that on the day Plaintiff was injured, Nichols had walked "quite a few times" in the area of the job site where Plaintiff was injured without noticing any holes. (Nichols Dep. 111:11--16, 116:6--8.) No evidence before the Court on this motion suggests that Davey Tree made the hole into which Plaintiff fell.
The contract between Davey Tree and CSX, evidently drafted by CSX, contained two provisions that are at issue here:
4. Contractor hereby assumes risk of, and agrees to indemnify, defend, and save Railroad harmless from and against (a) injury to or death of any person(s) whomsoever, including, but not limited to, the agents, servants or employees of the parties hereto, and/or (b) the loss of or damage to any property whatsoever, including property owned or In the care, custody or control of Railroad and contractor, and/or (c) all claims, demands, suits, judgments, fines or expenses incurred in connection therewith; resulting from or arising out of the intentional acts or negligent acts or omissions of said Contractor, or its agents, servants or employees, in the performance or execution of the Work, or incidental thereto.
5. Contractor shall purchase and maintain, at Contractor's expense: (a) Commercial General Liability Insurance coverage, in the minimum amount of $1,000,000.00 Combined Single Limit per occurrence for bodily injury and property damage liability, with a thirty (30) day unconditional notice of cancellation to the Railroad, including coverage of all liability assumed by Contractor under this contract; (b) Workers Compensation Insurance; and (c) Automobile Liability Insurance of at least $500,000.00 Combined Single Limit per occurrence for bodily injury and/or property damage. Contractor shall provide certificates of insurance to Railroad verifying the same prior to performing of any Work. (Letter Contract (Oct. 6, 2004) ¶¶ 4 & 5.)
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the ...