Papers Numbered

Notice of Motion - Affidavits - Exhibits........................................1-4

Answering Affidavits - Exhibits.....................................................5-7

Reply Affidavits..............................................................................8-9

In this action, plaintiff seeks damages for personal injuries allegedly sustained on July 29, 2008, in the course of her employment as a part-time mail carrier for the United States Postal Service, when, while delivering mail to premises located at 50-01 5th Street, Long Island City, Queens, New York, she was struck in the head by wet cement. [*2]

The owner of the premises is defendant JSL Realty Holding II, LLC ("JSL"). At the time and place of the subject incident, there was an ongoing construction project, known as the "Greenview Development." Defendant JSL hired defendant Sphere Construction Inc. ("Sphere") as general contractor to run the project, to hire subcontractors, and to perform the interior work for the project. Defendant Sphere hired defendant Masonry Services, Inc. ("MSI"), a masonry subcontractor, to perform exterior work for the project, including masonry brick, block, and concrete work.

Pursuant to the terms of the contract, defendant MSI is to indemnify and hold harmless defendants JSL and Sphere from and against all claims and demands arising out of or in connection with MSI's work under the contract and to reimburse defendants JSL and Sphere costs and expenses, including legal expenses, incurred in connection with the defense of such claims and demands. The contract further obligates defendant MSI to obtain insurance naming defendants JSL and Sphere as additional insureds. Defendant MSI obtained such insurance and named defendants JSL and Sphere as additional insureds and certificate holders.

According to the testimony of defendant Sphere's president, Joseph Escarfullery, at the time of the incident, the subject block was closed off with caution tape, and defendant MSI was applying a skim coat of mortar - - which is a mixture of sand, mud base, concrete, and water - - on the concrete masonry unit blocks on the face of the building. In their answers, defendants JSL and Sphere assert cross claims against defendant MSI for indemnification.

Defendants and Sphere move for summary judgment in their favor and against defendant MSI on the issue of defense and indemnification. Their motion also seeks to direct defendant MSI to defend and indemnify defendants JSL and Sphere with respect to all claims in this action, to direct defendant MSI to reimburse defendants JSL and Sphere for the defense costs of this litigation; and to dismiss defendant MSI's cross claims against defendants JSL and Sphere.

The right to contractual indemnification depends upon the specific language of the contract (see, e.g., Canela v TLH 140 Perry St., LLC, 47 AD3d 743 [2nd Dept. 2008]; see also, Roldan v New York Univ., 81 AD3d 625 [2nd Dept. 2011]; Lesisz v Salvation Army, 40 AD3d 1050 [2nd Dept. 2007]). The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances (see, Rodrigues v N & S Building Contractors, Inc., 5 NY3d 427 [2005]; see also, Hooper Assoc., Ltd. v AGS Computers, Inc., 74 NY2d 487 [1989]; Canela v TLH 140 Perry St., LLC, 47 AD3d 743, supra.)

The subject contract is clear and unambiguous and, in pertinent part, provides:

Subcontractor shall and does hereby indemnify and hold harmless the General Contractor and Owner . . . from and against any and all liability, claims, demands, damages, losses, expenses and costs of every kind and nature including without limitation, costs of suit and attorneys fees and disbursements . . . resulting from or in any manner arising out of it, in connection with or on [*3]account of (i) any act, omission, fault or neglect of Subcontractor, or any Subcontractor of, or material supplier to, Subcontractor, or anyone employed by any of them in connection with the Work or anyone for whose acts any of them may be liable, (ii) claims of injury to or disease, sickness or death of persons or damage to property (including, without limitation, loss of use resulting therefrom) occurring or resulting directly or indirectly, or alleged to have resulted directly or indirectly, from the Work or the activities of Subcontractor, or any Subcontractor of, or material supplier to Subcontractor, or anyone employed by any of them in connection with the Work . . . .

The express language of the subject indemnification agreement specifically obligates defendant MSI to indemnify defendants JSL and Sphere from all claims resulting from, arising out of or occurring in connection with the work specified in the contract. This language also includes an obligation by defendant MSI to pay defendants JSL and Sphere for any defense costs they may incur in such claims.

Defendants JSL and Sphere met their burden of establishing their entitlement to judgment as a matter of law by demonstrating that the subject accident arose out of or occurred in connection with defendant MSI's masonry work in its performance of the subject contract (see, Jin-Rong Yu v 2030 Embassy LLC, ___ AD3d ____, 2011 WL 1496516, 2011 NY Slip Op 03188 [1st Dept. 2011]; Hopes v New Amsterdam Restoration Group, Inc., ___ AD3d ___, 2011 WL 1444466, 2011 NY Slip Op 03033 [2nd Dept. 2011]; see also, Roldan v New York Univ., 81 AD3d 625, supra; Reisman v Bay Shore Union Free School Dist., 74 AD3d 772 [2nd Dept. 2010]). In opposition, defendant MSI failed to raise a triable issue of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Defendant MSI's assertion that the subject condition of falling wet cement was caused by other subcontractors on the job is speculative, unsupported, and without merit. Defendant MSI's claim that the motion is premature is also without merit.

Accordingly the branches of the motion of defendants Sphere and JSL for summary judgment as against defendant MSI on the issue of its liability to them for contractual indemnification, requiring defendant MSI to assume the defense of this action on their behalf, and directing defendant MSI to reimburse them for their reasonable attorneys' fees, costs and expenses, which they have incurred to date, are granted (see, Sand v City of New York, ___ AD3d ___, 2011 WL 1497887, 2011 NY Slip Op 03226 [2nd Dept. 2011]).

Defendants JSL and Sphere presented competent evidence demonstrating their prima facie entitlement to summary judgment dismissing defendant MSI's cross claims for common-law indemnification, contribution, contractual indemnification, and breach of contract for failure to procure insurance. Defendant MSI, in response, failed to submit any competent evidence demonstrating the existence of a triable issue of fact. Defendant MSI's contention that this branch of the motion is premature is without merit.

Accordingly, the branch of the motion of defendants JSL and Sphere for summary judgment in their favor dismissing defendant MSI's cross claims against them is also granted. [*4]

The foregoing constitutes the opinion, decision, and order of the Court.

Dated: May 2, 2011

J.S.C.