Cahn v Ward Trucking, Inc.
2012 NY Slip Op 08446 [101 AD3d 458]
December 11, 2012
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 6, 2013

John Cahn, Respondent,
Ward Trucking, Inc., et al., Respondents, and J.T. Falk & Company, LLC, Sued Herein as J.T. Falk & Company, Inc., Respondent-Appellant/Third-Party Plaintiff-Respondent-Appellant/Second Third-Party Plaintiff-Respondent-Appellant, et al., Defendant. Chemtreat, Inc., Third-Party Defendant-Appellant-Respondent; Atlantic Coastal Trucking, Inc., et al., Second Third-Party Defendants-Respondents. (And Other Actions.)

[*1] Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant-respondent.

Ahmuty, Demers & McManus, Albertson, (Glenn A. Kaminska of counsel), respondent-appellant.

Pollack, Pollack, Isaac & De Cicco, New York (Michael H. Zhu of counsel), for John Cahn, [*2]respondent.

Downing & Peck, P.C., New York (John M. Downing, Jr. of counsel), for Ward Trucking, Inc., respondent.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Debra A. Adler of counsel), for R.C. Dolner, LLC, respondent.

Law Office of James J. Toomey, New York (Evy L. Kazanzky of counsel), for Taconic Management Company, LLC and 450 Park Avenue South Associates LLC., respondents.

Quirk and Bakalor, P.C., New York (Debra E. Seidman of counsel), for Atlantic Coastal Trucking, Inc. and Triangle Trucking, respondents.

Order, Supreme Court, New York County (Paul Wooten, J.), entered February 16, 2011, which, to the extent appealed from, denied third-party defendant Chemtreat's motion for summary judgment dismissing the third-party complaint and all cross claims against it, and denied defendant/third-party plaintiff/second third-party plaintiff J.T. Falk's motion for summary judgment dismissing the complaint against it and for summary judgment on its claims for contractual and common-law indemnification against Chemtreat, and for common-law indemnification against Ward Trucking, Atlantic, Triangle and Bermudez, unanimously modified, on the law, to grant Chemtreat's motion, and to grant Falk's motion to the extent of dismissing plaintiff's action as against it, and otherwise affirmed, without costs. The clerk is directed to enter judgment dismissing the complaint as against defendant Falk and the third-party complaint and all cross claims as against defendant Chemtreat.

This is an action to recover damages for personal injuries sustained by plaintiff when he was struck by a barrel (or drum) of cleaning chemicals that fell off of a hand truck in the lobby of a building owned by defendant 450 Park, where plaintiff worked. Third-party Chemtreat, the vendor of the chemicals who allegedly failed to pack the barrels properly for delivery, was entitled to summary judgment. The claims for common-law indemnification against Chemtreat should have been dismissed, as the record shows that Chemtreat was not actively at fault in bringing about plaintiff's injury (see McCarthy v Turner Constr., Inc., 17 NY3d 369, 375 [2011]). Indeed, it is undisputed that the barrels were unpacked by the independent trucking contractors who delivered them, and that the barrel that hit plaintiff fell after the trucking contractors rocked the hand truck during delivery. Chemtreat also owed no duty of care to plaintiff, who was a third party to the vending contract between Chemtreat and Falk (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140-141 [2002]).

The claims for contractual indemnification against Chemtreat also should have been dismissed. The indemnity provision in Chemtreat's contract with Falk was limited on its face to losses arising from the use of Chemtreat's patented devices, processes, materials and equipment. Because the chemicals were not in use at the time of the accident, a properly strict reading of the indemnity clause bars a finding that Chemtreat owes Falk contractual indemnity (Baginski v Queen Grand Realty, LLC, 68 AD3d 905 [2009]). Nor did Chemtreat owe Ward Trucking, which subcontracted the delivery of the barrels to Atlantic/Triangle, contractual indemnity; the contract between Chemtreat and Ward Trucking contains an indemnification clause only in favor [*3]of Chemtreat. There is no basis in the record for finding that Chemtreat is subject to the indemnification provisions in the building manager Taconic's construction contract with Dolner, the general contractor.

The complaint also should have been dismissed as against Falk, which was performing work on the building's HVAC system. While its contract with Dolner, the construction manager, imposed responsibility upon Falk for "delivery, unloading . . . and all other risk of loss relating to materials" it used in the work, Falk did not actually supervise the unloading and delivery of the barrels. Thus, it did not "launch[ ] a force or instrument of harm" (Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]). As to the remaining bases for extending a contractual obligation to a party lacking privity (Espinal, 98 NY2d at 140), there is no evidence that plaintiff had come to rely on Falk's supervision of deliveries so as to reasonably expect that Falk would supervise the delivery that occasioned his injury (id., citing Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226 [1990]). Finally, Falk did not entirely displace the obligation of others to maintain safety at the premises during deliveries (Espinal, 98 NY2d at 140), and thus its "contractual undertaking is not the type of 'comprehensive and exclusive' property maintenance obligation contemplated by Palka" (id. at 141, citing Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 584 [1994]). Concur—Tom, J.P., Andrias, DeGrasse, Richter and Román, JJ. [Prior Case History: 2011 NY Slip Op 30366(U).]