1) Third-Party Defendant's JOVIL CONTRACTING CORP. ("JOVIL") motion for an Order pursuant to CPLR § 3212 granting summary judgment and dismissing Plaintiff's Complaint and all cross-claims; 2) Defendant/Third-Party Defendant's VILES CONTRACTING CORP. ("VILES") motion for an Order pursuant to CPLR § 3212 granting summary judgment and dismissing the Third-Party Complaint; and 3) Defendant/Third-Party Plaintiff's GEORGIA PROPERTIES, INC. ("GEORGIA") cross-motion for an Order pursuant to CPLR § 3212 granting contractual indemnification over and against VILES are all consolidated for Decision herein.

JOVIL's motion is granted in its entirety, without opposition.

VILES's motion is granted in its entirety.

GEORGIA's cross-motion is denied.

Facts

Plaintiff was working on the exterior portion of a building located at 275 Central Park West ("the Building") on July 24, 2006, when he allegedly slipped and fell while descending from a scaffold, suffering personal injuries. (see Pl. EBT at 52:7-15.) Plaintiff was employed by VILES, the contractor hired by GEORGIA, who also owned the Building. JOVIL was responsible for leasing the sidewalk-bridge and scaffold to VILES and VILES was responsible for the erection and use of the scaffold at the work site according to a leasing agreement between the parties.

VILES was responsible for obtaining insurance coverage for GEORGIA, Workers' Compensation Insurance, complete operations liability insurance, and provide a copy of an additional insured endorsement covering GEORGIA pursuant to the "Standard Form of Agreement Between Owner and Contractor." This "Standard Form of Agreement" does not [*2]include a clause requiring VILES to indemnify GEORGIA.

There was a subsequent "Hold Harmless" agreement, which contains an Indemnification clause, signed by Fernando Vidal, the President of VILES, on July 24, 2006. This Agreement, however, appears to be between VILES as "Contractor" and RCR Management LLC ("RCR") and Affiliates as "Owner/Landlord." Ari Paul, RCR's managing agent, testified that: RCR was the property manager for the Building on the date of the date of the alleged accident (Paul EBT at 11:21-23); neither he nor RCR had any relation to GEORGIA (id. at 12:12-14); he did not report to GEORGIA regarding the construction at issue (id. at 13:19-22); and he did not report to GEORGIA in his capacity as managing agent of the Building (id. at 19:23-25; 14:2). Mr. Vidal was asked at his deposition whether he "intend[ed] that Viles would indemnify and hold harmless Georgia Properties for work at this job site" pursuant to the "Hold Harmless" agreement. (Vidal EBT at 50:15-17.) To which he answered, "I don't know. I don't know what that — I don't know." (Id. at 50:20-21.)

Arguments

JOVIL is moving for summary judgment on the grounds that it cannot be held liable based solely on its role as lessor of the scaffold. VILES is moving for summary judgment on the grounds that there is no evidence of a written indemnification agreement between it and GEORGIA. GEORGIA is cross-moving for summary judgment on the grounds that it is—or was intended to be—covered by the "Hold Harmless" Agreement.

Lessor of Scaffolding

JOVIL has established that it was an "independent supplier" of the scaffold, who exercised no supervision or control with respect to that product at the construction site. Similarly, the record herein does not demonstrate common-law negligence on JOVIL's part arising from any alleged breach by it of a duty to supervise the work, to provide safety equipment, or to warn about hazards not unique to the scaffolding. Under the lease agreement, these duties devolved upon the contractor VILES. Furthermore, there are no allegations that the scaffold itself was in any way defective, hazardous, dangerous, or in any other way responsible for Plaintiff's alleged mishap. Consequently, no liability may attach to JOVIL under the Labor Law or common-law for Plaintiff's alleged injuries. See Waters v. Patent Scaffold Co., 75A.D.2d 744.

Hold Harmless

Where the language is clear, unequivocal and unambiguous, a contract is to be interpreted by its own language, and courts are not at liberty to look at extrinsic circumstances surrounding the transaction, or elsewhere, for reasons to ascertain its intent; the understanding of the parties must be deemed to be that which their own written agreement declares. Springsteen v. Samson, 32 NY 703, 705.

It is undisputed that the "Standard Form of Agreement" between VILES and GEORGIA [*3]does not contain an Indemnification clause. This is why GEORGIA is relying on the "Hold Harmless" Agreement. That Agreement, however, unequivocally and unambiguously states that it is between Viles Contracting Corp. and RCR Management LLC and its Affiliates, and lists this latter entity as the "Owner/Landlord."

Although there is evidence that RCR was the property manager for the Building and that GEORGIA owned the Building, there is no evidence that GEORGIA was an RCR affiliate ^[FN1], i.e., a subsidiary corporation, parent corporation, sibling corporation, shareholder, director, officer, partner, member, employee, agent, division, heir, successor or assign, or exercised any other form of control over RCR. Indeed, the President of RCR testified that there was no relationship between GEORGIA and RCR, and that he had no responsibility to report to GEORGIA regarding the construction being done by VILES or his management of the Building. Consequently, there is no evidence that there is a "written contract entered into prior to the accident or occurrence by which [VILES] expressly agreed to contribution to, or indemnification of [GEORGIA]" in this matter. Soto v. Alert No. 1 Alarm Sys., 272 AD2d 466, 468.

The Court is unmoved by GEORGIA's argument that VILES's procurement of insurance coverage equates to an intention to indemnify, since "[a]n agreement to procure insurance is not an agreement to indemnify or hold harmless, and the distinction between the two is well recognized." Kinney v. G. W. Lisk Co., 76 NY2d 215, 218 (emphasis in opinion); see also Longwood Cent. School Dist. v. American Employers Ins. Co., 35 AD3d 550, 551; Kennelty v. Darlind Constr., Inc., 260 AD2d 443, 445. "Whereas the essence of an indemnification agreement is to relieve the promisee of liability, an agreement to procure insurance specifically anticipates the promisee's continued responsibility' for its own negligence for which the promisor is obligated to furnish insurance." Kinney, supra at 218.

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

Dated: _2/16/2010___________J.S.C.