This action arises from a construction site accident. The motion before the court pertains only to the third-party action between Farrell Building Company, Inc. (Farrell), which was hired by owner/defendant MBBCO II, LLC to build a single-family dwelling, and Farrell's subcontractor, Bayview Building & Framing Corp. (Bayview). Farrell moves, pursuant to CPLR 3212, for (1) summary judgment dismissing Bayview's counterclaim; (2) summary judgment on its third-party complaint against Bayview; and (3) the court to set this matter down for a hearing on the issue of damages, based on Bayview's failure to assume the defense and indemnity of Farrell in this action.

Farrell's third-party complaint alleges two causes of action: for common-law indemnification/contribution, and for contractual indemnification/breach of contract. Bayview asserts a counterclaim against Farrell for common-law indemnification.

Summary Judgment [*2]

"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law" (Dallas-Stephenson v Waisman, 39 AD3d 303, 306 [1st Dept 2007], citing Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). " Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers'" Santiago v Filstein, 35 AD3d 184, 186 [1st Dept 2006], quoting Winegrad, 64 NY2d at 853). However, "[o]nce the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial" (Dallas-Stephenson, 39 AD3d at 306, citing Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]). "The court's role, in passing on a motion for summary judgment, is solely to determine if any triable issues exist, not to determine the merits of any such issues" (Sheehan v Gong, 2 AD3d 166, 168 [1st Dept 2003], citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).

Bayview's Counterclaim

"Common-law indemnification is predicated on vacarious liability without actual fault,' which necessitates that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine' [citation omitted]" (Edge Management Consulting v Blank, 25 AD3d 364, 367 [1st Dept 2006]; see also Balladares v Southgate Owners Corp., 40 AD3d 667, 671 [2d Dept 2007]). "To establish a claim for common-law indemnification, the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident' [citations omitted]" (Perri v Gilbert Johnson Enterprises, Ltd., 14 AD3d 681, 684-685 [2d Dept 2005]; see also Consolidated Edison Co. of New York v Vilsmeier Auction Co., 21 AD3d 726, 728-729 [1st Dept 2005]; Correia v Professional Data Management, 259 AD2d 60, 65 [1st Dept 1999] [same]).

"Contribution is available where two or more tortfeasors combine to cause an injury' and is determined in accordance with the relative culpability of each such person' [citation omitted]" (Godoy v Abamaster of Miami, 302 AD2d 57, 61 [2d Dept 2003]; see also AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 594 [2005] ["A claim for contribution rises and falls based on the existence of separate tortfeasors"]).

The part of Farrell's motion which seeks summary judgment dismissing Bayview's counterclaim is premature. No finding has yet been made in the main action with respect to Farrell's possible liability to plaintiff. Thus, Farrell cannot yet premise its motion on a finding that it was only vicariously liable to plaintiff and was free of any negligence of its own. Therefore, the part of its motion which seeks summary judgment dismissing Bayview's counterclaim must be denied.

Summary Judgment on the Third-Party Complaint

Common-Law Indemnification/Contribution

For the reasons set forth above, the part of Farrell's motion which seeks summary judgment on its claim for common-law indemnification/contribution must be denied.

Contractual Indemnification

On June 10, 2005, Farrell, as contractor, and Bayview, as subcontractor, entered into an Indemnification and Hold Harmless Agreement (the Agreement), which provided, in relevant [*3]part:

[T]o the fullest extent permitted by the applicable law governing this contract, Subcontractor agrees to defend, indemnify and hold harmless the Contractor ... from any and against any claim, cost, loss, damage, expense or liability, including attorneys' fees, attributable to ... personal injury ... arising out of, resulting from or occurring in connection with the performance of Project work by Subcontractor ... . Notwithstanding the foregoing, wherever there is a provision in the applicable law governing this contract making void and unenforceable any such indemnification hereunder where the Contractor is negligent or at fault, in whole or in part, then and in any such event such indemnification shall apply only to the extent permitted by such applicable law, and nothing herein set forth shall be deemed to preclude the indemnification of [the Contractor] hereunder from any of the foregoing damages that are caused by, arise out of, result from, or occur in connection with the negligence or any other fault of a party other than the [Contractor], whether or not the [Contractor] is partially negligent or at fault. ...

Should any person assert a claim or institute a suit, action or proceeding against Contractor involving the damages, Subcontractor shall, upon request of Contractor, promptly assume the defense of such claim, suit, action or proceeding, at Subcontractor's expense, and Subcontractor shall indemnify and hold harmless Contractor ... from and against any claim, cost, loss, damage, expense or liability (including attorney's fees) arising out of or related to such claim, suit, action or proceeding. ...

Bayview does not dispute that it entered into the Agreement with Farrell, or that the Agreement was in full force and effect on the date of plaintiff's accident.

Two fundamental principles of contract interpretation are that "agreements are to be construed in accord with the parties' intent", and that "[t]he best evidence of what parties to a written agreement intend is what they say in their writing. Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" [citation omitted]

(Van Kipnis v Van Kipnis, 43 AD3d 71, 77 [1st Dept 2007]; see also Bailey v Fish & Neave, 8 NY3d 523, 528 [2007]; Franklin Apartment Associates v Westbrook Tenants Corp., 43 AD3d 860, 861 [2d Dept 2007]). "The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry of whether the writing is ambiguous in the first instance" (Kafka Construction v New York City School Construction Authority, 40 AD3d 1038, 1039 [2d Dept 2007]; see also Broad Street, LLC v Gulf Insurance Co., 37 AD3d 126, 130 [1st Dept 2006]). "When the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations" (Franklin Apartment Associates, 43 AD3d at 861). "The objective is to determine the parties' intention as derived from the language employed in the contract" (Kafka Construction, 40 AD3d at 1039). When dealing with an indemnification contract, "the intention to indemnify must be unmistakably clear from the language of the promise' [citation omitted]" (Fresh Del Monte Produce N.V. v Eastbrook Caribe A.V.V., 40 AD3d 415, 418 [1st Dept 2007]). [*4]

Here, the Agreement is clear and unambiguous. Thus, the court will construe it according to its terms, which provide explicitly that Bayview has the obligation to defend and indemnify Farrell in this suit for any damages and expenses to which Farrell may be subjected as a result of Bayview's negligence or fault.

In its opposition to Farrell's motion, Bayview submits only its attorney's affirmation, without any supporting evidence, and suggests that the Agreement violates General Obligations Law (GOL) § 5-322.1, which "was enacted to void indemnification agreements that seek to exempt the indemnitee from liability based on negligence, irrespective of whether that negligence is wholly or only partially the cause of the injury" (Cavanaugh v 4518 Associates, 9 AD3d 14, 20 [1st Dept 2004]). The argument is without merit. The contractual language clearly provides that the indemnification obligation is only triggered "to the fullest extent permitted by the applicable law governing this contract," and specifically, that "wherever there is a provision in the applicable law ... making void and unenforceable any such indemnification hereunder where the Contractor is negligent or at fault, in whole or in part, then ... such indemnification shall apply only to the extent permitted by such applicable law." The case law makes it plain that GOL § 5-322.1 "only prohibits enforcement of a contractual indemnification clause if the party seeking indemnification was negligent, or had the authority to supervise, direct, or control the manner of the work that caused the injury [citations omitted]" (Damiani v Federated Department Stores, 23 AD3d 329, 331 [2d Dept 2005]), and that provisions that contain limiting language, such as "to the fullest extent permitted by law," do not run afoul of GOL § 5-322.1 (see e.g. Jackson v City of New York, 38 AD3d 324, 324-325 [1st Dept 2007] [indemnification "provision contains the requisite language limiting the subcontractor's obligation to that permitted by law"], citing Dutton v Charles Pankow Builders, 296 AD2d 321, 322 [1st Dept 2002] [no violation of GOL § 5-322.1 because clause provides indemnification only "to the fullest extent permitted by applicable law"]; Cabrera v Board of Education of City of New York, 33 AD3d 641, 643 [2d Dept 2006] [no violation of GOL § 5-322.1 because provision aurthorized indemnification "to fullest extent permitted by law"], citing Dutton). Thus, the contract is not void under GOL § 5-322.1, and may be enforced according to its terms in the event that Farrell is not found negligent.

Bayview lamely speculates that Atiencia's injuries "could have arisen in whole or in part, from Farrell's negligence" (McCutchen 9/21/07 Affirm., ¶ 5). Bayview presents no evidence of any purported negligence on Farrell's part. Its suggestion that a deposition of a Farrell witness would enable Bayview to provide a defense to Farrell's claim that it was not negligent is speculative at best, since Bayview does not indicate any basis for its inference that Farrell had any duty to know about any problems with the scaffold or to inspect it.

In response to Farrell's evidence that Atiencia, a Bayview employee, drove a Bayview van, received instructions only from Bayview employees, was performing the work that Bayview contracted to do, climbed Bayview's ladder and stepped onto scaffolding erected by carpenters employed by Bayview, which carpenters were told how to erect the scaffolding by Bayview employees, and that the scaffolding broke when plaintiff walked on it, Bayview presents no evidence that Farrell had anything to do with the accident in any way. Thus, Bayview also has produced no evidence that Farrell "had the authority to supervise, direct, or control the manner of the work that caused the injury" (Damiani, 23 AD3d at 331), such that enforcement of the Agreement would violate GOL § 5-322.1. [*5]

Therefore, in the event that Farrell is not found negligent, the part of Farrell's motion which seeks summary judgment on its claim for contractual indemnification is granted.Because Bayview does not contest that it has not provided Farrell with any defense or indemnification in this matter, and because the Agreement's language clearly requires Bayview to defend Farrell when it is sued in this context, the part of Farrell's motion which seeks summary judgment on its breach of contract claim is granted.

Accordingly, it is

ORDERED that the part of Farrell Building Company, Inc.'s motion which seeks summary judgment dismissing Bayview Building & Framing Corp.'s counterclaim is denied; and it is further

ORDERED that the part of Farrell Building Company, Inc.'s motion which seeks summary judgment on its claim for common-law indemnification/contribution is denied; and it is further

ORDERED that the part of Farrell Building Company, Inc.'s motion which seeks summary judgment on its contractual indemnification claim is granted on the condition that Farrell Building Company, Inc. is not found negligent in the main action; and it is further

ORDERED that the part of Farrell Building Company, Inc.'s motion which seeks summary judgment on its breach of

contract claim is granted, with the issue of damages to be resolved at trial.

Dated: December 4, 2007

ENTER:

_______________________________________

Carol Robinson Edmead, J.S.C.