Sertesen v JDS Dev. Group LLC

Supreme Court, New York County

Decided on May 18, 2026

Index No. 151081/2022

Christopher Chin, J.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112 were read on this motion to/for DISMISS.

Upon the foregoing documents, and after oral argument, it is

ORDERED that the motion by third-party defendant Special Testing & Consulting, LLC ("STC") to dismiss the contractual indemnification and failure to procure insurance claims pursuant to CPLR §3211(a)(1) (documentary evidence); to dismiss the common law contribution and common law indemnification claims asserted against them pursuant to CPLR §3211(a)(7) (failure to state a cause of action); and for summary judgment in favor of STC dismissing all indemnification and contribution claims against them pursuant to CPLR §3212 is granted, as explained below.

A motion to dismiss based upon documentary evidence pursuant to CPLR § 3211 (a)(1), will be granted if the evidence supplied "conclusively establish[es] a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88 [1994]). A motion to dismiss for failure to state a cause of action pursuant to CPLR § 3211 (a)(7), will be granted if affording the pleading a liberal construction, providing plaintiff with the benefit of all favorable inferences, and accepting the facts as alleged to be true, the court finds that the complaint fails to sufficiently assert a cognizable cause of action against the moving defendant (see id at 87-88).

Moreover, the proponent of a motion for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If the moving party meets its prima facie burden, the opposing party must "'produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action'" (Carlson v Colangelo, 44 NY3d 116, 124 [2025], rearg denied 44 NY3d 986 [2025] [citation omitted]).

Applying such principles here, it is

ORDERED that the portion of the motion which seeks to dismiss the claims against third-party defendant STC for common law contribution and indemnification is granted and those claims are dismissed.

Workers' Compensation Law § 11 precludes any claims for common law contribution or [*2]indemnification against a plaintiff's employer unless the plaintiff sustained a "grave injury." For an injury to rise to the level of a "grave injury", it must meet one of the following definitions: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external force resulting in permanent total disability (see Workers' Compensation Law § 11). It is not disputed here that plaintiff's injuries do not amount to a "grave injury" as provided in the statute and therefore, the claims for common law contribution and indemnification against third-party defendant STC, plaintiff's employer, are dismissed (see Hernandez v Opera Owners, Inc., 217 NYS3d 58 [1st Dept 2024] [dismissing the third-party complaint's common law contribution and indemnification claims since neither the complaint, bill of particulars, nor the third-party complaint alleged that plaintiff suffered a "grave injury"]).

It is further

ORDERED that the portion of the motion to dismiss claims against third-party defendant STC for contractual indemnification and breach of contract for failure to procure insurance is granted and those claims are also dismissed.

As to the claim for failure to procure insurance, STC established a prima facie entitlement to judgment as a matter of law dismissing that claim by demonstrating that the contract did not contain an insurance procurement provision for the benefit of the third-party plaintiffs. Notably, it is not disputed that none of the third-party plaintiffs are parties to the "Consultancy Agreement" between 9 DEKALB OWNER LLC and STC. It is also not disputed that none of the third-party plaintiffs are listed in Exhibit B to that contract which identifies the "Additional Insureds" (see DiBuono v Abbey, LLC, 83 AD3d 650, 652 [2d Dept 2011] [to establish a claim based on an alleged failure to procure insurance there must be a showing that a contract provision required the procurement of insurance and the provision was not complied with]; Uddin v A.T.A. Constr. Corp., 164 AD3d 1402, 1405 [2d Dept 2018] ["A provision in a construction contract cannot be interpreted as requiring the procurement of additional insured coverage unless such a requirement is expressly and specifically stated"]). Accordingly, the burden of going forward shifted to the third-party plaintiffs to raise a triable issue of material fact which they failed to do (see Zuckerman v City of New York, 49 NY2d 557, 557 [1980]). Thus, the branch of STC's motion seeking dismissal of the cause of action asserted in the third-party complaint for breach of contract for failure to procure insurance is granted, and this claim is dismissed.

As to the contractual indemnity claims, "[t]he right to contractual indemnification depends upon the specific language of the contract. 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" (Bleich v Metropolitan Mgt, LLC, 132 AD3d 933, 934 [2d Dept 2015] [internal quotation marks and citations omitted]).

Here, STC established a prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover for contractual indemnification by demonstrating that it did not have a contractual obligation to indemnify third-party plaintiffs (see Reimold v Walden Terrace, Inc., 85 AD3d 1144, 1146 [2d Dept 2011]; Reimold v Walden Terrace, Inc., 85 AD3d [*3]1144, 1146 [2d Dept 2011]).

The contract between 9 DEKALB OWNER LLC and STC provides, in pertinent part, as follows:

10.05 To the fullest extent permitted by law, Consultant will defend, indemnify, and hold Owner, Owner's affiliates, such other entities as listed in Exhibit B, and each of their constituent agents, employees, officers, directors, members, and shareholders (collectively, the "Indemnitees") harmless against and from all claims, actions, damages, judgments, fines, penalties and costs of any nature (including, but not limited to reasonable attorney's fees and expenses (including attorneys' fees incurred by an Indemnitee to enforce Consultant's obligations pursuant to this Section 10.05)), however characterized (collectively, "Exposure"), to the extent arising out of or resulting from the Consultant's Basic and/or Additional Services under the Agreement (including a breach of this Agreement), provided that such Exposure was caused, in whole or in part, by the Consultant or anyone for whom Consultant is legally liable ("Consultant Parties"). The Consultant's obligations under this Section 10.05 shall not be limited in any manner by damages payable pursuant to any worker's compensation or similar laws; shall be separate from and independent of any other party's obligations; and shall be without regard to any insurance otherwise available to the Consultant or any Indemnitee hereunder. This provision shall survive expiration or termination of this Agreement.

The language of the contract is clear that STC did not have an obligation to indemnify the third-party plaintiffs since it only obligates STC to indemnify the owner and its affiliates and entities listed in Exhibit B, which does not include third-party plaintiffs.

Accordingly, the burden of going forward shifted to the third-party plaintiffs to raise a triable issue of material fact which they again failed to do (see Zuckerman, 49 NY2d at 557). Third-party plaintiffs oppose the motion arguing that they are intended beneficiaries to the contract between 9 DEKALB OWNER LLC and STC. They rely on the fact that the contract lists 9 DEKALB OWNER LLC c/o JDS Development Group LLC, as the "owner", and argue that JDS Development Group LLC is therefore an intended beneficiary to the contract, but provide no authority to hold that a "c/o" has any such legal ramifications. A list of additional insureds are listed in Exhibit B to the agreement. A review of the listed entities reveals that there are several JDS entities included therein but not the two JDS entities that are third-party plaintiffs, to wit, JDS DEVELOPMENT GROUP LLC and JDS DEVELOPMENT CORP. There is no explanation provided as to how these JDS entities are related, if at all, to the JDS entities that are listed in Exhibit B. Additionally, there is no claim that the other third-party plaintiffs, to wit LINDE-GRIFFITH CONSTRUCTION COMPANY and TRIDENT STRUCTURAL, are somehow related to the entities listed in Exhibit B. The court notes that during oral argument, when it inquired if Exhibit B contained any typographical errors, i.e. JDS DEVELOPMENT GROUP LLC or JDS DEVELOPMENT CORP. being listed as JDS Development LLC or JDS Construction Group LLC, counsel for third-party plaintiffs advised that each of these entities exist as separate entities. Nevertheless, no affidavit is submitted to explain any typographical error.

Moreover, it is well settled that a third-party can assert itself as an intended beneficiary in two situations: 1) when the third-party is the only one who could recover for the breach of contract; or 2) when it is otherwise clear from the language of the contract that there was an [*4]intent to permit enforcement by the third-party (Dormitory Auth. Of the State of NY v. Samson Constr. Co., 30 NY3d 704 [2018]; 75 First Ave. Club LLC v. United Glass Sys. Corp., 223 AD3d 491 (1st Dept 2024). Neither of these two situations are present here.

As stated, it is not disputed that none of the third-party plaintiffs are named in the agreement with STC and no part of the agreement obligates any third-party plaintiff to be named as additional insureds in any insurance policy. Therefore, there can be no contractual duty by STC to indemnify third-party plaintiffs or, to purchase any insurance naming them as additional insureds.

Moreover, even if the third-party plaintiffs were to be considered intended third-party beneficiaries, the claim for indemnity must arise from a breach of the subject agreement, which did not occur here (see Orellana v 5541-1274 Fifth Ave. Manhattan LLC, 234 AD3d 527, 528 [1st Dept 2025]). Plaintiff in this case was an employee of STC who was injured at the job site located at 9 DeKalb Avenue, Brooklyn, NY. According to plaintiff, his job was to pick up concrete samples to bring back to his company for testing. At the time of the accident, plaintiff was moving concrete samples on his hand truck when he tripped over a hose, and the hand truck and some of the concrete samples fell on him. It is not disputed that STC did not have anything to do with the hose. The agreement at issue merely obligated STC to test concrete samples. Therefore, a claim for indemnity would only arise where damages resulted from negligence in testing the concrete samples. There is no claim however that STC was negligent in the performance of its contractual duties to trigger any indemnity claim.

While in opposition third-party plaintiffs argue that the Worker's Compensation C-3 form can be read to state that the hand truck provided by STC was defective and there was no mention in this form regarding an accident involving a hose, plaintiff testified at his deposition that there was nothing wrong with the hand truck prior to his fall and the hand truck broke only as a result of the fall. Furthermore, plaintiff testified that the form was not complete as it was missing some lines. In any event, the C-3 form lacks probative value (see Hill v. New York City Health and Hospitals Corp., 147 AD3d 430 [1st Dept 2017] [document which was neither certified nor authenticated, lacked probative value]; Rue v. Stokes, 191 AD2d 245, 246 [1st Dept 1993] ["unsworn reports, letters, transcripts and other documents do not constitute evidentiary proof in admissible form and may not be considered in opposition to a motion for summary judgment"). Hence, even assuming that third-party plaintiffs were intended beneficiaries, there is no admissible evidence that the negligence of STC caused or contributed to plaintiff's accident, to trigger any indemnity provision. Therefore, any claims against STC for indemnity are dismissed.

Thus, based upon the above, the motion by third-party defendant Special Testing & Consulting, LLC ("STC") to dismiss all claims against them is granted.

DATE 5/18/2026

Christopher Chin, JSC