Plaintiff, RD Rice Construction, Inc., ("Rice") was hired to renovate an apartment. It hired as its plumbing subcontractor Sage Mechanical, Inc., ("Sage"), the defendant. Plaintiff has sued defendant under an indemnity agreement for damages plaintiff alleges arose out of the plumbing work. Because there are unresolved questions of fact, the Court denies the defendant's motion to dismiss.

The indemnity agreement stated inter alia, that the defendant Sage shall indemnify the plaintiff Rice for all bodily injury and property damage " ... arising out of or resulting from the performance of the subcontractor's work ... regardless of whether it is caused in part by a party indemnified hereunder... "

A mechanical room was constructed for the apartment. In it an air conditioner, a radiator and a cold water pipe were located. Approximately four months after the completion of defendant's work, the pipe cracked and spewed water all over the apartment inflicting property damage. The temperature that day was recorded at 1 Fahrenheit.

Plaintiff claims that the pipe burst at the elbow because it was not insulated against freezing even though the rest of the pipe was insulated, and the damages were exacerbated because the shutoff valve was located far from the mechanical room. The plaintiff complains that the super did not know where the shutoff valve was located so that he had to call the construction manager for the project who informed him where the shutoff valve was located.

No plans, specifications, regulations or statutes were produced showing that there was a requirement to insulate the pipes. Plaintiff's expert, a licensed plumber, stated that it was customary to insulate the hot and cold water pipes against condensation and freezing, and if the pipes elbow had been insulated, the pipe would not have [*2]burst.

Defendant's expert witness, a licensed professional engineer, stated that it was customary to insulate the pipes against condensation only and that insulation would not have been an adequate protection against freezing temperatures, especially the 1 Fahrenheit temperature of that day. Moreover, the appropriate way to prevent the pipe from freezing was to furnish a heating coil. No such heating coil was specified by the architect.

Defendant also contends that it was plaintiff's negligence in not adequately insulating the air conditioning system, corroborated by its expert, that allowed the cold air in and contributed to the pipe's bursting. Plaintiff, on the other hand, asserts that the air conditioning system was adequately insulated. Defendant also points out that the plaintiff's negligence exacerbated the damages. Plaintiff knew very well where the turnoff valves were located, as evidenced by the instructions given by the plaintiff's construction manager to the superintendent as to the location of the shutoff valves. Plaintiff's negligence was in not previously informing the super where the shutoff valves were located. Moreover, plaintiff had someone at the premises every day inspecting work and he never raised any issue about insulating the elbow.

Summary judgment, being the drastic remedy that it is, should not be granted where there are undecided issues of fact, (See, Rotuba Extruders v Ceppos, 46 NY2d 223, 413 NYS2d 141 [1978]; Moscowitz v Garlock, 23 AD2d 943, 259 NYS2d 1003 [3d Dept 1965]).

Here, there are several undecided issues: was defendant and movant Sage negligent in not insulating the elbow of the cold water pipe? This depends on whether there was a custom of insulating the cold water pipe against freezing. Even if the elbow was insulated, would that have prevented the pipe from freezing in the face of a sub-freezing temperature of 1, thereby raising a question of proximate cause? Was the plaintiff Rice negligent in its inspector, who was on the premises daily, not raising the absence of the lack of insulation on the pipe elbow? Did the air conditioner unnecessarily fail to keep cold air out because it was not properly insulated? Was Rice also negligent in not notifying the super of the building of the location of the turnoff valves, thereby causing additional damages? Any such negligence on RD Rice's part would prevent it from enforcing the indemnification clause, and would result in dismissing the claim for indemnification pursuant to General Obligations Law 5-320.1 Cavanaugh v 7518 Assocs., 9 AD3d 14, 776 NYS2d [1st Dept 2004]).

Accordingly, it is

ORDERED that this motion for summary judgment dismissing this action is denied.

Dated: August 23, 2007Enter:

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Louis B. York, J.S.C.