Upon the foregoing papers it is ordered that the summary judgment motion of one defendant is granted solely to the extent set forth below and the other three motions are denied.

In 2001 defendant Community Development Properties, Yonkers, Inc. (CDP), the owner of certain property in the City of Yonkers, New York, retained defendant Whiting-Turner Contracting Company (WTC) as the general contractor on a project (the Project) at the Yonkers Public Library (the Library). WTC then retained defendant Herbert G. Martin, Inc. (Martin) to act as the prime electrical contractor for the Project. In turn, Martin hired plaintiff's employer, third-party defendant Adco Electical Corp. (Adco), to perform part of the electrical work. And subsequently, WTC contracted with second-third-party defendant Carmody Contracting, Inc. (Carmody) for the latter to furnish and install the concrete foundations at the Library.

On March 11, 2002, plaintiff was directed by Adco's foreman to shoot holes into a concrete ceiling using a powder-actuated gun while standing on a hydraulic lift (the Lift) supplied to Adco by Fourth-Party Defendant United Rental (United). At one point while he was performing that work, the Lift shifted beneath him, causing him to twist his back and aggravate a previously-existing back condition for which he had been placed on light-duty work.

On October 1, 2004 plaintiff commenced this action (the Main Action) against defendants WTC, Turner Construction Company^[FN1], Martin, Yonkers Industrial Development Corp. (YIDA) and CDP, by filing a complaint (the Complaint) asserting two causes of action for negligence and violations of the State Labor Law and certain regulations promulgated under the Federal Occupational Safety and Health Act of 1970. In turn, Martin commenced a third-party action against Adco (the Third-Party Action) and a fourth-party action against United (the Fourth-Party Action). Finally, WTC filed a second-third-party action (the Second-Third-Party Action) against Carmody).

With issue joined and discovery almost completed in the Main [*2]Action but prior to the filing of plaintiff's Note of Issue (the NOI)^[FN2], Adco moved for summary judgment and dismissal of Martin's third-party complaint and all cross-claims asserted against it by any other party. Carmody then moved to sever the Second-Third-Party Action from the Main Action, or in the alternative, to strike the NOI so that it may conduct pre-trial discovery. Finally, both Martin and WTC cross-moved for summary judgment requiring Adco to provide them with a defense and indemnification in the Main Action. The Court turns first to Carmody's motion.

I. SEVERANCE

CPLR 603 provides that:

"In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue. The court may order the trial of any claim or issue prior to the trial of the others."

"The decision [to grant severance] is one which rests soundly in the discretion of the trial court" (County of Chenango Industrial Development Agency v. Lockwood Greene Engineers, Inc., 111 AD2d 508,509 [3d Dept. 1985]).

Claiming that it will be unduly prejudiced if the Second-Third-Party Action is not severed from the Main Action, the Third-Party Action and the Fourth-Party Action, Carmody moves for relief pursuant to CPLR 603. The motion is opposed by WTC, Martin, Adco and United.

In this case, Carmody's central complaint is that it will be prejudiced if a severance is not granted because it will be denied the opportunity to conduct all of the pretrial discovery that it requires in order to defend itself. That concern, however, has been fully addressed by this Court, which has already established a schedule for the completion of all pretrial discovery in this litigation, including the discovery to which Carmody is entitled. In view of the fact that Carmody will not suffer any prejudice if the Second-Third-Party Action proceeds with the Main Action, the Third-Party Action and the Fourth-Party Action (collectively hereinafter "the Four Actions"), and considering the "predominance of common factual and legal issues presented" in the Four Actions, the severance sought by Carmody is not warranted (see Philippson v. Hexalon Real Estate, Inc., [*3]111 AD2d 126,127 [1st Dept. 1985]). Therefore, Carmody's motion is denied.^[FN3]

On its motion, Adco seeks relief pursuant to CPLR 3212 or CPLR 3211. Specifically, relying upon Workers' Compensation Law §11 (hereinafter "Section 11"), it asks the Court for dismissal of Martin's third-party complaint, which seeks common law and contractual indemnification and contribution, and dismissal of all other cross-claims asserted against it. Only Martin and WTC have responded to the motion, and each of those parties have also cross-moved for summary judgment in its behalf directing that Adco provide it with a defense and indemnification in the Main Action.

As explained by our Court of Appeals:

Section 11 "prohibits most third-party claims for contribution or indemnification against an employer for injuries sustained by an employee acting within the scope of employment. But the statute sets forth two exceptions: the employer may be impleaded when the employee has sustained a grave injury' or when there is a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant'". (Flores v. Lower East Side Service Center, Inc., 4 NY3d 363,367 [2005] [Internal citation omitted]).

At bar, there is no claim that plaintiff suffered a "grave injury" as defined by Section 11. Consequently, the only question presented on the motions of Adco, Martin and WTC is whether there is a written agreement pursuant to which Adco promised the latter two defendants that it would defend and indemnify them in an action such as this one.^[FN4]

In support of its motion, Adco offers proof that, in fact, it had no written contract with either Martin or WTC that would [*4]bring those parties within the exception to the Section 11 bar of an indemnification claim against Adco, as plaintiff's employer. That showing is sufficient to entitle Adco to summary judgment, thereby shifting the burden to Martin and WTC to demonstrate the existence of a factual issue requiring a trial (cf. Gilbert v. Albany Medical Center, 21 AD3d 677,678 [3d Dept. 2005] [Finding that issue of fact existed as to whether employer agreed to indemnify property owner]). The Court separately addresses the showings made by WTC and Martin in their attempts to meet that burden.

As a condition of Adco's involvement in the Project, it agreed to obtain coverage for WTC as an additional insured on its General Liability Policy (the Adco Policy). As set forth in the certificate of insurance issued by Adco's insurer (the WTC-COI), "[WTC's] interest is included as Additional Insured under the General Liability coverage for liability arising out of [Adco's] operations regarding the [] [P]roject" (Apostolakos Affirm., Exh.L, p.1 [hereinafter "the WTC-COI language"]). WTC relies upon the WTC-COI language both in its opposition to Adco's motion and in support of its cross-motion for summary judgment. Specifically, it argues that "[t]he [WTC-COI] explicitly provides for defense and indemnification by ADCO to [WTC] as an additional insured on ADCO's general liability policy" (id., par.12). The Court disagrees.

The term "additional insured" is one which "has a well-understood meaning in the insurance industry as an entity enjoying the same protection as the named insured'" (Del Bello v.

General Accident Insurance Company of America, 185 AD2d 691,692 [4th Dept. 1992]). Thus, whatever coverage Adco is entitled to under the Adco Policy is also available to WTC. That fact, taken alone, however, does not resolve the indemnification issue in favor of WTC. Rather, the Court must determine whether the WTC-COI language relied upon by WTC, together with all of the other relevant circumstances, supports the conclusion that an indemnification obligation was created by agreement of Adco and WTC.

In general, "[w]hen a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed" (Hooper Associates, Ltd. v. AGS Computers, Inc., 74 NY2d 487,491 [1989]). Consequently, as cautioned by the Court of Appeals, "[t]he promise should not be found unless it can be clearly implied from the language and [*5]purpose of the entire agreement and the surrounding facts and circumstances" (id., at 491-492).

Here, the WTC-COI language does not refer in any manner to indemnification. Nor does WTC point to any other evidence, including any history of prior dealings with Adco, that would lend support to its claim that Adco agreed to indemnify it (cf. Gilbert v. Albany Medical Center, supra, 21 AD3d, at 678-679). Accordingly, Adco is granted summary judgment dismissing WTC's indemnification cross-claims against it. Based upon that determination, WTC's cross-motion for summary judgment on its indemnification cross-claims is denied.

B. INDEMNIFICATION OF MARTIN

Unlike WTC, Martin secured language as to its additional insured status under the Adco Policy which refers to an indemnification obligation. Specifically, in the Certificate of Insurance naming Martin as an additional insured (the Martin-COI) it is stated that:

"[Martin's] interest is included as Additional Insured under the General Liability coverage for liability arising out of the Named Insured's operations regarding the [] [P]roject. To the fullest extent permitted by law and to the extent claims, damages, losses or expenses are not covered by the Subcontractor's Liability insurance the Subcontractor shall indemnify and hold harmless [Martin], The Owner, the Architect and the Architect's consultants and the agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of the work, bodily injury, sickness, disease or death or to injury to or destruction caused by the negligent acts or omissions of the Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in party by a party indemnified hereunder. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which otherwise exist as to a party or person described in this Paragraph." (Adams Affirm., Exh.L, p.2 [hereinafter the Martin-COI language).

Relying upon the Martin-COI language, two letters expressing the intent of Martin and Adco to have Adco act as a subcontractor for Martin on the Project (together hereinafter "the Letters of Intent") and a payment application submitted by Adco (the Payment Request), Martin asserts that it is entitled to summary judgment [*6]in its favor on its contractual indemnification cross-claim against Adco or, at the least, that Adco's summary judgment motion must be denied. The Court agrees with Martin, but only in part.

Contrary to Martin's position, neither the Letters of Intent nor the Payment Request refer to indemnification or to the Martin-COI. While the Martin-COI may constitute a written indemnification agreement even though it is not signed by Adco, it has not been established as a matter of law that Adco intended that it be required to provide a defense and indemnification to Martin when it agreed to have Martin named as an additional insured under the Adco Policy. Therefore, because an issue of fact exists as to the intent of Martin and Adco with respect to indemnification^[FN5], both Adco's summary judgment motion against Martin and Martin's cross-motion for summary judgment are denied (see Gilbert v. Albany Medical Center, supra).

The foregoing shall constitute the decision and order of the Court.

Dated: White Plains, New York

May 16, 2007

Hon. William J. Giacomo, J.S.C.

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