Defendant T.J. Maxx's (hereinafter "Maxx") cross-claims for contribution and common law and contractual indemnification from co-defendants DeMartino Construction Company, Inc and Jo-Mark Installations, Inc. (hereinafter "D & J"), and the cross-claims of D & J against Maxx are dismissed for the reasons set forth herein.

Plaintiff alleged that she tripped and fell due to an upturned or protruding corner of the flooring material at the entrance to a T.J. Maxx store ^[FN1] (Maxx), which had been installed by defendant DeMartino Construction Company, specifically by DeMartino's subcontractor, Jo-Mark Installations Inc. The flooring in the vestibule to the store was installed some four months [*2]before plaintiff's accident. The main action was settled on February 15, 2011, after a mistrial was declared due to plaintiff's breaking her nose in a fall down the escalator at the courthouse in full view of several members of the jury. The settlement provides for payment to plaintiff equal shares, one-half from Maxx and one-half from D & J. The action was discontinued against defendants Basser-Kaufman Management Company and Oceanside Plaza Associates. A stipulation was so ordered, copy annexed.

When the case was settled, it was agreed, as set forth in the stipulation between counsel for Maxx and counsel for D & J that determination of the parties' cross-claims would be severed, and determined at a non-jury trial, scheduled for April 4, 2011. Severance of a cross-claim turns that cross-claim into a third party claim. See, Acuri v Ramos, 7 AD3d 741 [2nd Dept 2004].

Before the trial date arrived, the attorneys asked the court to determine the matter on papers. The attorneys insisted that determination of the matter involved only a legal issue, which could be determined on papers. A stipulation, annexed hereto, was submitted, dated April 4, 2011. Said papers are the ones now before the court. They consist of a Memo of Law from D & J, a responsive Memo of Law from Maxx, and a "reply" Memo of Law from D & J. The papers consist entirely of legal argument, save the bills for legal services rendered by Maxx's attorneys and one affidavit in Maxx's papers, from someone named Robert Richardson, the construction project manager for TJX (Maxx), who works in Massachusetts. It is his opinion that he is submitting an affidavit in "support of a cross-motion of the defendant" for "summary judgment as a matter of law on its cross-claim for contractual indemnification against DeMartino Construction." He does not acknowledge ever setting foot in the Maxx store at issue, either before the accident or after. He asserts that he read the contract between Maxx and DeMartino. While he acknowledges that the duty of DeMartino to indemnify is limited to matters involving a "breach of the contract or negligence of either DeMartino or its subcontractor," he says "it is DeMartino's responsibility under the contract to defend, indemnify and hold The TJX Companies, Inc. harmless . . . based upon the claim made in this case, the language of the contract and the history of the relationship between The TJX Companies, Inc. and DeMartino." As will be explained below, this is an inaccurate understanding of the law in New York.

There is no mention in the papers submitted by D & J of their cross-claims against Maxx which are set forth in their Answer to the Complaint, and they are therefore dismissed. There is no mention in the papers submitted by Maxx with regard to the issues of contribution, common law indemnification, or breach of contract to obtain insurance, as set forth in their Answer to the Complaint, and those cross-claims are therefore dismissed. As stated in Maxx's papers, "the sole issue remaining is whether DeMartino is required to defend, indemnify and hold TJX harmless under paragraph 17 of the contract." The court finds that Maxx has failed to establish a prima facie case that DeMartino is required to do so, and therefore, Maxx's claims herein against DeMartino and Jo-Mark (D & J) are dismissed.

It must be noted that by decision of J. Martin dated July 2, 2010, he, as the IAS judge for this action, denied Maxx's motion for indemnification because he found there were factual issues as to which entity, if any, was negligent and whether the alleged defect was de minimus, which required a trial.

While it can be argued that this is the law of the case, the court finds that the law of the case doctrine does not apply here. See Cohen v Crown Point Cent. Sch. Dist., 306 AD2d 732 (2nd [*3]Dept 2003); Chappelear v Dollar Rent-A-Car, 33 AD3d 513 (1st Dept 2006). First, the attorneys stipulated to the court's consideration of the matter at this juncture, and second, as the underlying case is completed, the matter before the court is a trial on papers in the third-party action for indemnification. It is not a successive summary judgment motion. See Brownrigg v NYCHA 29 AD3d 721 (2nd Dept 2006); See, Rocky Point Drive-In L.P. v Town of Brookhaven, 37 AD3d 805, 808 (2nd Dept 2007).

The parties further stipulated (the April 4, 2011 Stipulation) that the work in question was governed by all the terms and conditions of the original construction contract between Maxx and DeMartino, effective February 13, 2006, and that the purchase order between DeMartino and Jo-Mark, dated April 5, 2006 should be deemed a contract modification binding on Maxx and DeMartino which relates back to the original contract. While it is not ideal to modify a renovation contract by purchase order, which should be used for goods and not services, there is no question that this purchase order is a complete contract between DeMartino and Jo-Mark and should not really be titled "Purchase Order." It is clearly an addendum to the original contract, which added additional work, in particular, demolition of the ceramic tile in the store's vestibule and installation of new flooring.^[FN2] The contract between DeMartino and Jo-Mark requires Jo-Mark to indemnify Maxx for any negligence on Jo-Mark's part in connection with the flooring, as will be explained below, but does not require DeMartino to indemnify Maxx for the work in the purchase order. By agreeing that the contract with Jo-Mark is a modification of the original contract between Maxx and DeMartino, DeMartino acknowledges that if there was any negligence in connection with the installation by Jo-Mark, DeMartino is obligated to indemnify and defend Maxx.

Two contractual clauses are at issue. In the remodeling contract between DeMartino and T.J. Maxx, for the renovations at the store, DeMartino is required to indemnify T.J. Maxx for any liability found against T.J. Maxx which arises out of the acts or omissions of DeMartino and its subcontractors. It specifies:

17. Indemnification.Contractor shall indemnify, defend and hold harmless Owner, Owner's landlord and its mortgagee (if any) and their respective affiliates, subsidiaries, parent, directors, officers, agents and employees from any and all liability, injury, loss, cost, damage, or expense (including attorneys' fees) resulting from any breach of the Contract Documents or from any violation of the legal restrictions on use of the Site or from any act, omission, or negligence of the Contractor, its affiliates, subsidiaries, parent, directors, officers, agents, employees or any Subcontractor. This indemnity shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for Contractor under Worker's Compensation Acts, disability benefit acts or other employee benefit acts, nor by any limitation on the amount of Contractor's liability insurance [emphasis added].

In addition, in the sub-contract between DeMartino and Jo-Mark, there is a clause requiring Jo-Mark to indemnify DeMartino and T.J. Maxx from any liability, except that which arises from Maxx's own negligent acts or omissions. It says: [*4]

5.To the fullest extent permitted by law You shall defend, indemnify and hold Us, the Owner, and the agents and employees of the foregoing harmless, of and from any and all claims, suits, losses or expenses whether direct or consequential (including legal fees and other expenses of litigation) arising out or in consequence of this Purchase Order, including, without limitation, wrongful death, bodily injury, property damage, and contractual and all other claims by any person, firm or corporation. This indemnity shall not extend to claims, costs, losses or expenses for bodily injury or property damage to the extent that such claims, costs, losses, or expenses arise out of or are the consequences of the negligence of one or more indemnities or their agents or employees.

Both these provisions comport with General Obligations Law § 5-322.1, which applies to contracts for the construction, alteration, maintenance or repair of buildings, and voids any contract clause which purports to indemnify one for one's own negligence.

The Court notes that the issues here have been clouded by the fact that plaintiff improperly sued DeMartino and Jo-Mark as direct defendants, and that DeMartino and Jo-Mark failed to move for the dismissal of plaintiff's direct case against them. Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party. See, Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]; Darby v Compagnie Natl. Air France, 96 NY2d 343, 347 [2001]; Pulka v Edelman, 40 NY2d 781, 782 [1976]; Izzo v Proto Constr. & Dev. Corp., 2011 NY Slip Op 1440 (2nd Dept 2011). Here, the issue is whether any such duty ran from DeMartino and Jo-Mark to plaintiff, given that DeMartino's contract was with T.J. Maxx. The existence and scope of a duty is a question of law. See, Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585-586 [1994]. Under the applicable decisional law, a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party. See, Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226-227 [1990]. As a matter of policy, the state's courts have generally declined to impose liability to that degree. Espinal v Melville Snow Contrs., 98 NY2d 136, 138-139 [ 2002]. A party who enters into a contract to render services may be said to have assumed a duty of care — and thus be potentially liable in tort — to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, "launches a force or instrument of harm" or "exacerbating or creating a dangerous condition"; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely. Espinal v Melville Snow Contrs., 98 NY2d at 140. Such circumstances are not analogous with the facts in the instant matter. However, as the issue is now before the court as a third-party action, the fact that D & J would have been dismissed, as a matter of law, as direct defendants, had they made a motion for this relief, is now irrelevant.

In T.J. Maxx's claim for contractual indemnification against D & J, the arguments are made in the alternative, and are, in essence, that 1) the contract between Maxx and D & J does not require that Maxx be free from negligence to trigger the indemnification and defense provision in the contract, 2) The mere fact that plaintiff claimed in her complaint that either or both DeMartino or Jo-Mark were negligent, (even if she had no right to sue them in the first place), triggers the provision to defend Maxx, if not to indemnify them until the negligent party is [*5]determined, 3) the installation was defective or someone would not have tripped only four months after the work was completed, 4) DeMartino or Jo-Mark should have provided Maxx with a "tutorial" on the flooring, so that they were able to properly pick it up and put it back down for cleaning, and 5) there is no prohibition against being indemnified for one's own negligence.

D & J respond to these claims by stating that 1) the installation was not defective, 2) nobody asked them for a tutorial with regard to the flooring, 3) as all the parties were sued directly for their own actions, the jury would have been asked to apportion liability between them, not to find that one was liable for the acts of another, and 4) GOL § 5-322.1 does bar indemnification so it does not matter that the first contract doesn't explicitly state that Maxx is not entitled to indemnification for their negligence. Thus, D & J argue that the cross-claim for contractual indemnification cannot be brought at all, as the hold harmless provision is inapplicable to the store owner's tort liability, citing Mayse v Wagner, 66 AD3d 967 [2nd Dept 2009]. D & J argue that Maxx, the store owner, is being sued because of its own negligent acts or omissions.

Maxx makes a number of contentions. They first argue that the indemnification provision of their contract with DeMartino doesn't exempt claims which arise from Maxx's own acts or omissions. This is incorrect, since under the contract DeMartino is only required to indemnify T.J. Maxx for any liability found against T.J. Maxx which arises out of the acts or omissions of DeMartino and/or its subcontractors. As the jury never made a determination as to which party was negligent, if any of them were, and the complaint makes direct claims against all the defendants, the court cannot assume that any of the three defendants would have been found liable for the accident in the jury's verdict.

Further, the parties have stipulated that this issue be decided upon the papers, without any live witnesses or affidavits from any fact witnesses ^[FN3], which precludes the Court from making any findings of fact as to who was actually responsible for the allegedly defective condition, if there was one. Even after taking the trial testimony into account, there was no evidence to support a finding of liability, as further discussed below.

Moreover, under General Obligations Law § 5-322.1, any contract clause which purports to indemnify Maxx for its own negligent acts or omissions would be void. The cases cited by Maxx to the contrary are not cases involving contracts applicable to the construction, alteration, maintenance or repair of buildings.

This court did have the benefit of some testimony, as several witnesses testified before the court declared a mistrial. An analysis of the testimony, however, leaves the court without any proof, either by a preponderance of the evidence, or a mere scintilla, that any of the named defendants were negligent. It seems likely the jury would have found plaintiff to have been too clumsy, and/or too old and unstable to go shopping in flip flops. [*6]

The first witness was plaintiff's adult son. He testified that he didn't see the accident. He dropped the plaintiff off and went to park the car. When he came back to the store to look for his mom, she was lying on the floor and the flooring was "bunched up." He did not take any pictures or identify any witnesses.

The second witness was the plaintiff herself. She testified that she went back to the store about a year after the accident with someone who took photos of the flooring, which were introduced into evidence as plaintiff's 1 and 2. She first said the photos were not a fair and accurate representation of what the floor looked like on the date of her accident (August 13, 2006) as the flooring in the photos was not "raised up as much," and then, during voir dire by the attorney for Maxx, said the photos did represent what the flooring looked like on the date of the accident. She admitted she had been to this store before the date of the accident, as she was there to return something. Since the return policy is presumably less than four months, it would seem she had walked on the same flooring previously.

The third witness was an architect called by plaintiff as an expert witness. He testified that he made a site visit to the store in August of 2009, three years after the accident, and took photos. These of course are not probative of anything related to plaintiff's accident, and they were not admitted into evidence. He was hired by Maxx, but called to testify by plaintiff. Plaintiff had an expert on site too when he did his inspection. He said when he made his site visit, it did not seem to him that the mat sections were fastened to the frame for the flooring by the clips as they should be. When shown the two photos in evidence, he testified that the photos demonstrated a tripping hazard. He said "the PVC seemed frayed." He seemed caught up short when he admitted he did not know the photos he was shown in the courtroom were taken over a year after the accident. He also admitted he was not aware that the accident occurred only four months after the flooring was installed.

This witness said he had never worked with this flooring, and he learned what he knew by looking at the company's website. He learned from the website that you can vacuum over the flooring, or take it up and clean under it and put it back down. He said there would be little debris collected by the flooring in the summer, and he of course did not know if anyone had picked up any of the sections for cleaning between the date it was installed to the date of the accident. He could not render an opinion on the length of time the matting would last before needing replacement. It could be replaced in sections, as it was installed in separate sections with clips. On cross, he acknowledged that he could not tell from the photo, taken over a year after the accident, if the defect he testified he saw in the photo, which "has to be caused by the mat moving," was a result of wear and tear, by the mat not being properly clipped in, or if was "defective from the get go."

The fourth witness called by plaintiff was Michael DeMartino, owner of defendant DeMartino Construction. He testified that his company has done a lot of work for Maxx, in maybe 50 - 60 of their stores. He said the vestibule work was done between March 30 and April 19, 2006, as the bill went out on April 19th. It did not entail changing the exterior doors or the exterior saddle. He was asked to take out the ceramic tile floor and put in matting, one kind for people going in that would collect debris, and one kind for people going out that was more of a carpet. This was requested by Maxx' in house construction manager. His company hired Jo-[*7]Mark to do the work. He personally has no familiarity with this flooring. Nobody at Maxx has asked him to replace any sections since it was installed, and nobody asked his company for any training on how to care for the flooring.

Plaintiff's fifth witness was a Maxx employee, who plaintiff subpoenaed to testify. He testified that on the date of the accident, he was the assistant manager of the store. The staff vacuumed the floor of the store, including the vestibule, every morning before the store opened. He supervised the cleaning on the days he was working, which was not all of the days the store is open, unless a different manager was supervising because he was doing something else. When the work on the vestibule was finished, it "looked fine" to him. He was working on the date of the accident. He went over to the plaintiff and spoke to her, and filled out an accident report. He did not take any photos. He did look at the flooring on the date of the accident, and "saw no problems." He has no recollection of any repairs or replacements to the matting material, and he never saw any part of the matting taken up. He worked in this store until August of 2008, two years after plaintiff's accident. He could not state whether the cameras in the store recorded or not, as that would be something known to the loss prevention staff.

In conclusion, Maxx has failed to meet the burden of proof for its third party claim for contractual indemnification. There is no question that in order for Maxx to be entitled to indemnification under the contract, there would have to be negligence on the part of DeMartino or its subcontractors, and Maxx has failed to establish that DeMartino or Jo-Mark's acts or omissions were negligent, that the flooring was defective, that the flooring was a trip hazard, or that there was any problem with the flooring at all. Maxx did not even try to establish that they had to replace any of the sections of the flooring because they wore out either when expected or sooner than expected, or were defective, or that the same flooring is not still in place in the Oceanside T.J. Maxx store exactly as it was left when Jo-Mark completed the installation in 2006. Maxx refused to present any witnesses for the trial in this severed third party action, erroneously arguing that this was an issue of law. As such, and so as not to prejudice D & J, Maxx agreed in the April 4, 2011 stipulation not to include any expert opinions in their papers. By so stipulating, Maxx made it impossible for the court to find that either DeMartino or Jo-Mark were negligent in connection with the installation of the flooring material in the store's vestibule in 2006.

Any relief requested but not specifically addressed herein is hereby denied.

The foregoing constitutes the decision, order and judgment of the court.

Dated: July 1, 2011

E N T E R,

Hon. Debra Silber, A.J.S.C.