In the underlying action, plaintiff seeks to recover monetary damages for injuries he claims to have sustained as a result of defendants' violation of the labor laws. Second third-party defendant/fourth-party plaintiff Siemens Building Technologies, Inc. ("Siemens") now moves for partial summary judgment on the issue of liability against fourth-party defendant J. M. Electrical Corp. ("JM Electrical"). JM Electrical cross moves for summary judgment dismissing the fourth-party action commenced by Siemens.

Since issue has been joined, and the note of issue has not yet been filed, summary judgment relief is available. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 (2004).

Plaintiff has filed an affirmation of "no position" in connection with each motion. Defendant Dooley Electric Company ("Dooley") opposes JM Electrical's motion for summary judgment dismissing the fourth-party complaint, and adopts the arguments advanced by Siemens in opposition thereto.

Based on the allegations contained in the complaint, plaintiff claims he was injured when he tripped over a piece of BX cable while working at a construction site located at 1230 York Avenue, New York, NY (the "project") which was located on property owned by The Rockefeller University ("Rockefeller"). Rockefeller hired Barr & Barr, Inc. ("Barr") to act as general contractor for the project. A the time of his injury, plaintiff was employed by one of Barr's subcontractors.

Barr and Siemens entered into a subcontract, under which Siemens agreed to supply an automatic temperature control system for the project. Siemens then hired JM Electrical, as subcontractor at the project, and entered into a subcontract agreement, dated October 5, 2001 (the "contract'). The contract provides that JM Electrical would "furnish all supervision, labor and materials, and perform all work" to install the automatic temperature control system. [*2]

Pursuant to the contract, JM Electrical agreed to obtain liability insurance protecting against personal injury claims. Severo has sued inter alia, Rockefeller and Barr. Pertinent to this motion, Rockefeller and Barr sued Siemens in the second-third party action. Siemens states that it tendered Rockefeller and Barr's claims to JM Electrical and Nationwide, who have, in turn, refused to defend Siemens. Siemens, thereafter, commenced the fourth-party action, wherein the fourth-party complaint alleges four causes of action, to wit: [1] negligence, breach of warranty and/or breach of contract and seeks common law indemnity; [2] negligence and seeks common law contribution and indemnity; [3] contractual indemnification; and [4] breach of contract for failure to purchase insurance making Siemens a primary additional insured under the insurance policy.

Summary of the Arguments

Siemens argues that JM Electrical has breached the contract by failing to procure insurance naming Siemens as an additional insured. JM Electrical separately cross moves for summary judgment dismissing the fourth-party complaint. JM Electrical contends that the indemnity clause is not applicable based on plaintiff's bill of particulars, and therefore Siemens is not entitled to contractual indemnity. In the alternative, JM Electrical opposes the motion, arguing that there are issues of fact which preclude summary judgment.

JM Electrical also argues that Siemens was an additional insured under the insurance policy issued to it by Nationwide Insurance ("Nationwide") and in effect on the date of plaintiff's injury, and therefore JM Electrical did not breach the contract. JM Electrical also claims that Nationwide's denial to provide coverage to Siemens does not establish that Siemens was not afforded additional insured status under the applicable insurance policy.

Discussion

On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial. CPLR � 3212; Winegrad v. NYU Medical Center, 64 NY2d 851 (1985); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Only if it meets this burden, will it then shift to the party opposing summary judgment, who must then establish the existence of material issues of fact, through evidentiary proof in admissible form that would require a trial of this action. Zuckerman v. City of New York, supra . If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Ayotte v. Gervasio, 81 NY2d 1062 (1993).

Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1977). The court's function on these motions is limited to "issue finding," not "issue determination." Sillman v. Twentieth Century Fox Film , 3 NY2d 395 (1957). When only issues of law are raised in connection with a motion for summary judgment, the court may and should resolve them without the need for a testimonial hearing. Hindes v. Weisz, 303 AD2d 459 (2nd dept. 2003).

Since each party has moved for summary judgment, each bears the initial burden of establishing their respective motions or raising factual disputes that would defeat the other [*3]movant's motion.

JM Electrical contends that the circumstances which led to plaintiff's injury were not a result of JM Electrical's work at the project. Plaintiff testified at his EBT that he tripped over "a BX without wires in it." Based on the affidavit of John A. Medina ("Medina"), JM Electrical argues that the work it performed at the construction site at the time of plaintiff's injury did not require the use or installation of BX cable and that JM Electrical did not use or install BX cable at the subject site.

Siemens argues that JM Electrical was also using Greenfield conduit, which may have caused plaintiff's injury. This claim is supported by the testimony of David Efrom ("Efrom"), an employee of Dooley. Efrom testified that Greenfield conduit "looks identical" to BX cable, except that Greenfield conduit does not have wires running through it. Medina also admits that Greenfield conduit was used at the project.

Based on the foregoing, Siemens has demonstrated a triable issue of fact from which a reasonable jury could conclude that plaintiff tripped over Greenfield conduit, used by JM Electrical at the project. Thus JM Electrical's argument that, as a matter of law, it was not negligent, must be rejected.

The next issue before the court is whether the Nationwide insurance policy fulfilled JM Electrical's contractual obligation to have Siemens named as an additional insured. The elements of a cause of action for breach of contract are: (1) formation of a contract between the parties; (2) performance by plaintiff; (3) defendants' failure to perform; and (4) resulting damage. Furia v. Furia, 166 AD2d 694 (2nd Dept. 1990). "To create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms." Express Industries and Terminal Corp. V. New York State Dept. Of Transportation, 93 NY2d 584 (1999).

Section 18.9 of the contract provides that JM Electrical "shall provide and maintain the insurance required by Exhibit E." Exhibit E provides that JM Electrical was obligated to carry:

Comprehensive General Liability or Commercial General Liability, insurance covering all operations by or on behalf of [JM Electrical]providing insurance

for bodily injury and property damage with limits of liability stated below and including coverage for:

- Products and Completed Operations

- Contractual Liability insuring the obligations assumed by [JM Electrical] in this Agreement

- [Siemen's] Protective Liability

- Broad Form Property Damage (Including Completed Operations)

- Installation Floater or Builders All Risk Coverage

- Explosion, Collapse and Underground Hazards

- Personal Injury Liability

There is no dispute that the policy does not list Siemens as an Additional Insured. However, JM Electrical claims that "[a] reading of the [policy] reveals that additional insured status/coverage is provided for... Siemens." JM Electrical contends that under the additional [*4]insured endorsement, which is blank, and alternatively under an indemnification clause, Siemens is afforded coverage, which satisfies its contractual obligations to maintain insurance coverage as specified in the contract. JM Electrical also points to the certificate of insurance which identifies JM Electrical Corp as the insured and Siemens as the certificate holder for a liability insurance policy.

Two fundamental principles of contract construction are that: (1) agreements are to be construed in accordance with the parties' intent; and (2) the best evidence of what the parties intend is what they provide in their writing. Greenfield v. Phillies Records, 98 NY2d 562 (2002); Van Kipnis v. Van Kipnis, 840 NYS2d 36 {43 AD3d 71} (1st Dept. 2007). A written agreement that is complete, clear and unambiguous on its face, must be enforced according to the plain meaning of its terms. Greenfield v. Philles Records, Inc., supra .

The court finds that Siemens was not afforded status as an Additional Insured under the policy within the meaning of the contract. Siemens is not listed on any of the endorsements. Moreover, the endorsement upon which JM Electrical relies, entitled "Additional Insured-Owners, Lessees or Contractors," contains a schedule which is blank. The endorsement specifically provides that only the person or organization listed in the accompanying schedule is an insured for purposes of the policy. The endorsement's clear language does not support JM Electrical's interpretation, and, therefore, JM Electrical's argument is unavailing.

The court also rejects JM Electrical's argument that the policy's indemnitee-defense clause affords additional-insured status to Siemens in conformance with JM Electrical's obligations under the contract. Exhibit E imposed various types of insurance requirements, to wit: "insurance for bodily injury and property damage... for: ... [Siemens'] Protective Liability." Under Section 5.1 of Article 5 to Exhibit E, JM Electrical agreed that Siemens "shall be included as Additional Insured under all Insurance policies and coverages maintained by or required to be maintained by [JM Electrical]." JM Electrical also agreed, "[e]ach policy shall provide that it is primary insurance as regards the additional insureds and contain a cross-liability or severability of interest clause."

The policy's indemnitee-defense clause imposes a number of conditions on coverage, namely: coverage would only be afforded if the insured "assumed" the liability, if the insured also assumed the duty to defend, if the insured asks the insurer to provide a defense, and if no conflict exists between the insured and the indemnitee. The rights afforded to Siemens under the indemnitee-defense clause are less than the rights which Siemens bargained for in the contract. Accordingly, the indemnitee-defense clause does not satisfy JM Electrical's obligations.

Nor is JM Electrical's "compliance with the contract... revealed by the certificate of insurance." The certificate clearly states in the upper right-hand corner of the document: "[t]his certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policies below." The policy is then listed below. Moreover, while not dispositive of JM Electrical's position, Nationwide's denial of coverage letter also serves to undercut JM Electrical's interpretation of the policy, wherein C. Morabito for Nationwide writes:

We are in receipt of [Siemens'] request to take over the defense and indemnity of [Siemens'] via the [contract] between [JM Electrical] and [Siemens]. Unfortunately, [JM Electrical's] policy of insurance does not name [Siemens] as an additional insured. [*5]

Accordingly, JM Electrical's cross motion for summary judgment is denied in its entirety and Siemens' motion is granted only to the extent that Siemens is entitled an order directing the entry of partial summary judgment on the issue of liability on the fourth cause of action for breach of contract for JM Electrical's failure to purchase insurance making Siemens a primary additional insured. Siemens' motion is otherwise denied.

Conclusion

In accordance herewith, it is hereby:

ORDERED that Siemens' motion is granted only to the extent that Siemens is entitled an order directing the entry of partial summary judgment on the issue of liability on the fourth cause of action for breach of contract for JM Electrical's failure to purchase insurance making Siemens a primary additional insured; and it is further

ORDERED that Siemens' motion is otherwise denied; and it is further

ORDERED that JM Electrical's cross motion for summary judgment is denied in its entirety; and it is further

ORDERED that the clerk is hereby directed to entry judgment in accordance herewith.

Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied.

This shall constitute the decision and order of the court.

Dated:New York, New YorkSo Ordered:

April 14, 2008

________________________

Hon. Judith J. Gische, JSC