John A. Del Vecchio, et al., plaintiffs-respondents,
Danielle Associates, LLC, defendant third-party plaintiff/second third-party plaintiff appellant- respondent, et al., defendant; Saturn of Newburgh, Inc., third-party defendant-respondent-appellant; Groundwater & Environmental Services, Inc., second third-party defendant-respondent. Index No. 28982/08
Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Patrick J. Lawless and Tracy Abatemarco of counsel), for defendant third-party plaintiff/second third-party plaintiff appellant-respondent.
Gallagher, Walker, Bianco & Plastaras, Mineola, N.Y. (Michael R. Walker of counsel), for third-party defendant-respondent-appellant.
Birbrower & Beldock, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Steven H. Beldock and Brian J. Isaac], of counsel), for plaintiffs-respondents.
Cartaflasa, Slattery, Turpin & Lenoff, New York, N.Y. (Patricia G. Zincke of counsel), for second third-party defendant-respondent.
REINALDO E. RIVERA, J.P., PETER B. SKELOS, CHERYL E. CHAMBERS, LEONARD B. AUSTIN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff/second third-party plaintiff appeals (1) from an order of the Supreme Court, Kings County (Silber, J.), dated October 27, 2011, which granted the motion of the second third-party defendant for summary judgment dismissing the second third-party complaint, and (2), as limited by its brief, from so much of an order of the same court dated August 9, 2012, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it and on its third-party cause of action for contractual indemnification, and the third-party defendant cross-appeals, as limited by its brief, from so much of the same order as denied its motion for summary judgment dismissing the third-party complaint and on its counterclaim for contractual indemnification against the defendant third-party plaintiff/second third-party plaintiff.
ORDERED that the order dated October 27, 2011, is affirmed; and it is further,
ORDERED that the order dated August 9, 2012, is modified, on the law, by deleting the provision thereof denying that branch of the third-party defendant's motion which was for summary judgment dismissing the first cause of action in the third-party complaint, and substituting therefor a provision granting that branch of the motion; as so modified, the order dated August 9, 2012, is affirmed insofar as appealed and cross-appealed from; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs and to the second third-party defendant, payable by the defendant third-party plaintiff/second third-party plaintiff.
On January 7, 2006, the injured plaintiff, who was employed by the third-party defendant Saturn of Newburgh, Inc. (hereinafter Saturn), allegedly was injured when he fell into a "hole" or "crater" that had formed in the front parking lot at his place of employment. Saturn leased the premises from which it operated its car dealership from the defendant third-party plaintiff/second third-party plaintiff, Danielle Associates, LLC (hereinafter Danielle), the owner of the subject premises. Groundwater & Environmental Services, Inc. (hereinafter Groundwater), and Danielle had entered into a contract dated November 8, 2001, pursuant to which Groundwater was to perform certain environmental work involving the excavation and removal of drywell contents and impacted soil at the subject premises.
Pursuant to the lease between Danielle, as landlord, and Saturn, as tenant, it was agreed that Saturn "shall be responsible for all maintenance and repair to the Premises (excluding to the extent previously described herein all structural components of the Building and Premises) of whatever kind or nature that is not hereinafter set forth specifically as the obligation of the Landlord." According to provision 24.7 of the lease, Saturn was to indemnify and hold Danielle harmless "from and against any and all loss... and against all claims, actions, damages, liability and expense in connection with... bodily and personal injury... arising from any occurrence in, upon or at the Premises or any part thereof." Further, this provision stated that Saturn assumed all risks of injury to people resulting from the condition of the premises and Saturn would defend Danielle in the event that an action was commenced against Danielle for which Danielle was not at fault.
However, in provision 27.2 of the lease, Danielle represented that there were no hazardous toxic materials on the premises except to the extent that claims were made by Saturn in connection with its prior lease and which the parties agreed to resolve pursuant to the terms of a separate agreement. This section provided, in part, that Danielle was to "indemnify and hold [Saturn] harmless from and against all claims, actions, liabilities and expenses, including reasonable legal fees... arising from the presence, removal, transport or disposal of Hazardous Substances in or from the Premises which are the responsibility of [Danielle]."
The injured plaintiff, and his wife suing derivatively, thereafter commenced this action against Danielle and another party. Danielle commenced a third-party action against Saturn for contribution and common-law and contractual indemnification. In addition, Danielle commenced a second third-party action against Groundwater for contribution and common-law and contractual indemnification.
Groundwater moved for summary judgment dismissing the second third-party complaint. By order dated October 27, 2011, the Supreme Court granted Groundwater's motion for summary ...