Preview
FILED: ERIE COUNTY CLERK 02/03/2021 12:55 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/03/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
UTICA NATIONAL INSURANCE COMPANY OF
OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH Index No. 809591/2020
INSTITUTE CENTRAL SCHOOL DISTRICT,
Plaintiff, AFFIDAVIT
OF ATTORNEY
MARK P. DELLA POSTA
CONCEPT CONSTRUCTION CORP.,
ARRIC CORP.,
GUARD CONTRACTING CORP., and
STROMECKI ENGINEERS, P.C.,
Defendants.
STATE OF NEW YORK )
COUNTY OF ERIE ) ss.:
CITY OF BUFFALO )
MARK P. DELLA POSTA, ESQ., being duly sworn, deposes and says:
1. I am an attorney at law, duly authorized to practice in the State of New
York, and am the attorney for the defendant, Arric Corp., ("Arric").
2. I make this affidavit in support of Arric's motion for:
a. An order, pursuant to CPLR §§3211 and 3212, granting summary
judgment dismissing the plaintiff's Complaint as against Arric, with prejudice;
b. An order, pursuant to CPLR §§3211 and 3212, granting summary
co-defendants'
judgment dismissing the cross-claims against Arric, with prejudice;
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c. An order granting Arric such other, further and different relief as to
the Court seems just, proper and equitable, together with the costs and disbursements
of this motion.
BRIEF BACKGROUND
3. By way of brief background, the plaintiff, Utica National Insurance
Company of Ohio ("Utica National"), brought this subrogation to recover alleged
damages it claims to have paid to its insured, the Springville-Griffith Institute Central
School District ("Springville-Griffith"), arising out of an incident that occurred on or about
July 4, 2019, wherein a portion of a building collapsed while undergoing work in
connection with a public construction project ("the Incident"). Springville-Griffith was the
owner of the project, which was known as, "Springville-Griffith Institute Central School
District - Capital Project - PTECH located at 307 Newman Street, in
Academy",
Springville, New York ("the Project").
4. Springville-Griffith had contracted with the defendant, Concept
Construction Corp. ("Concept"), to perform the general construction work for the Project.
Concept then subcontracted certain portions of its work to the defendant, Arric Corp.
("Arric"). Arric, in turn, subcontracted certain portions of its work to Guard Contracting
Corp. ("Guard") and Guard hired the defendant, Stromecki Engineers, P.C.
("Stromecki"), to perform certain engineering work in connection with Arric's work on the
Project.
PROCEDURAL POSTURE
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5. Utica National commenced this action by electronically filing a Summons
and an unverified Complaint in the Erie County Clerk's Office on August 31, 2020. The
Summons and Complaint was then served upon Arric, and Utica National's attorneys
gave extensions to Guard and to Arric to answer or otherwise move with respect to the
Complaint that currently extend through February 5, 2021. Guard and Arric have not
filed answers to the Complaint, but Concept and Stromecki have both filed answers.
Both of their answers contain cross-claims against Arric. (A true copy of Utica
National's Summons and Complaint is annexed hereto as Exhibit B, and true copies of
Concept's and Stromecki's Answers to the Complaint are annexed hereto as Exhibits C
and D, respectively.)
6. There has been no discovery among the parties to date.
UTICA NATIONAL'S COMPLAINT
7. According its Complaint (Ex. B), Utica National issued a policy of
insurance to Springville-Griffith which insured against damages to Springville-Griffith's
property at 307 Newman Street, Springville, New York. (Ex. B, 14) Utica National
further alleges that it paid Springville-Griffith $152,558.88 under its policy for the
damages to Springville-Griffith's property at that address as a result of the Incident.
(Ex. Utica National brought this as subrogee of Springville-
B, ¶¶20, 23-24) action,
Griffith, to recover the amount it paid to Springville-Griffith, alleging that the Incident was
caused by the negligence of the defendants. (Ex. B, ¶¶20-25)
ARRIC'S MOTION
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8. Arric is making this motion because, under the contractual documents
among and governing the parties herein for the Project, Utica National had no right to
bring this action. The contract documents for the Project were, upon information and
belief, prepared on behalf of Springville-Griffith by its Architect or Construction Manager.
They contain a broad waiver of subrogation provision wherein Springville-Griffith and
Concept and all other parties involved in the Project were required to waive, and did, in
fact, waive, their rights of subrogation against all other parties. Thus, Utica National,
which stands in the shoes of Springville-Griffith in asserting its claim herein, is bound by
these provisions and is barred and precluded from proceeding with this action.
9. Annexed hereto as Exhibit A is an Affidavit of Paul Keller, the President
of Arric. In his affidavit he identifies and annexes as exhibits various contracts among
the parties. Annexed as Exhibit E is a copy of Springville-Griffith's contract with
Concept, and attached as Exhibit F is a copy of the general conditions to that contract.
A copy of Concept's contract with Arric is annexed as Exhibit G, and a copy of Arric's
contract with Guard is annexed as Exhibit H. Guard did not have a written contract
materials"
with Stromecki. Guard hired Stromecki on a "time and basis, wherein it
requested Stromecki to perform certain engineering work, and Stromecki billed Guard
for the time it spent and materials it utilized in performing that work.
10. Springville-Griffith's contract with Concept consisted of an American
Institute of Architects ("AIA") Standard Form of Agreement Between Owner and
Contractor ("Agreement") (Ex. E) and a set of General Conditions of the Contract of
Construction ("General Conditions") (Ex. F). Article 9 of the Agreement (Ex. E)
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enumerates the contract documents, and states that they include the General
Conditions (Ex. F), Supplementary General Conditions, if any, Specifications, Drawings
and various enumerated Addenda. There were no Supplementary General Conditions
on the Project. I have reviewed all of the contract documents, the only contract
documents that are relevant to the issues involved in this motion are the Agreement
(Ex. E) and General Conditions (Ex. F).
11. Article 11 of the General Conditions (Ex. F), relating to "Insurance and
Bonds", contains the following provision:
11.3.7 Waivers of Subrogation. The Owner and Contractor
waive all rights against (1) each other and any of their
respective subcontractors, sub-subcontractors, agents and
employees, and (2) the Construction Manager, Construction
Manager's consultants, Architect, Architect's consultants,
separate contractors described in Article 6, if any, and any of
their respective subcontractors, sub-subcontractors, agents,
and employees, for damages caused by fire or other causes
of loss to the extent of proceeds under property insurance
obtained pursuant to this Section 11.3 or other property
insurance applicable to the Work, except such rights as the
Owner and Contractor may have to the proceeds of such
insurance held by the Owner. The Owner or Contractor, as
appropriate, shall require of the Construction Manager,
Construction Manager's consultants, Architect, Architect's
consultants, Owner's separate contractors described in
Article 6, if any, and any of their respective subcontractors,
sub-subcontractors, agents, and employees, by appropriate
written agreements, similar waivers each in favor of other
parties enumerated in this Section 11.3.7. The policies must
provide such waivers of subrogation by endorsement or
otherwise. A waiver of subrogation is effective as to a
person or entity even though that person or entity would
otherwise have a duty of indemnification, contractual or
otherwise, did not pay the insurance premium directly or
indirectly, and whether or not the person or entity has an
insurable interest in the property damaged.
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12. As the Court can see from the first sentence of Section 11.3.7, "The
Owner"
(Springville-Griffith) has clearly and unequivocally waived its subrogation rights
"Contractor"
against the (Concept) and all of its subcontractors and sub-subcontractors,
which include Arric, Guard and Stromecki. This is obviously a very broad provision
which is intended to be binding upon every type of party involved in the Project and to
accomplish a complete waiver of rights of subrogation by all of them as against each
other with respect to property damage claims covered by insurance. It binds the owner
and contactor, and all of their subcontractors, sub-subcoñtractors construction
managers, architects and consultants involved in the Project.
13. Section 11.3.7 is unambiguous and thus this Court can decide the
construction of Section 11.3.7 as a question of law, because it is well settled that, "On a
motion for summary judgment, the construction of an unambiguous contract is a
question of law for the court to pass on (Mallad Constr. Corp. v. County Fed. Sav. &
96)."
Loan Assn, 32 N.Y.2d 285, 291, 344 N.Y.S.2d 925, 298 N.E.2d Lake Construction
& Development Corporation v. City of New York, 211 A.D.2d 514, 515, 621 N.Y.S.2d
337 (1st Dept. 1995).
14. Section 11.3.7 is mirrored in Concept's contract with Arric (Ex. G) and in
Arric's contract with Guard (Ex. H). In Concept's contract with Arric (Ex. G), a waiver of
subrogation rights is contained in Section 13.7 of the attached General Conditions for
Subcontract and is also required in the attached page of insurance requirements. In
Arric's contract with Guard (Ex. H), a waiver of subrogation rights is contained in
Section 13.8 and is also required on page 2 of the attached Insurance Requirements.
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15. Under Section 11.3.7, if any insurance carrier for any of the parties
involved in the Project pays amounts for covered property damage, it cannot assert a
subrogation claim or bring an action against any other party in the Project. The
insurance carrier must absorb the loss itself.
16. As a consequence of the foregoing, Utica National is barred and
precluded from bringing this subrogation action as subrogee of Springville-Griffith,
because Springville Griffith waived its rights of subrogation against all other parties
involved in the Project. Again, Utica National stands in the shoes of, and is bound by,
Springville-Griffith's contractual obligations with respect to the Project.
17. Accordingly, Arric is entitled to an order, pursuant to CPLR §§3211 and
3212, granting summary judgment dismissing the plaintiff's Complaint as against Arric,
with prejudice.
18. In addition, for the same reasons, Arric is entitled to an order, pursuant to
co-defendants'
CPLR §§3211 and 3212, granting summary judgment dismissing the
cross-claims asserted against Arric, with prejudice. As shown herein, the co-defendants
were also parties involved in the Project, and they also waived their rights of
subrogation against all other parties involved in the Project for the type of claim
asserted in this action. are barred and precluded from cross-
Thus, they asserting
claims against Arric.
CONCLUSION
19. In view of the foregoing, I respectfully request this Honorable Court to
grant:
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a. An order, pursuant to CPLR §§3211 and 3212, granting summary
judgment dismissing Utica National's Complaint as against Arric, with prejudice;
b. An order, pursuant to CPLR §§3211 and 3212, granting summary
co-defendants'
judgment dismissing the cross-claims against Arric, with prejudice;
c. An order granting Arric such other, further and different relief as to
the Court seems just, proper and equitable, together with the costs and disbursements
of this motion.
IARR . DELLA POSTA
Sworn to before me this
3rd
d of February, 2021.
cq lin Miayden
Public - State of New York
Notary
Qualified in Erie County
License #01HA4994529
My Commission Expires: 04/06/22
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Preview
FILED: ERIE COUNTY CLERK 02/03/2021 12:55 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/03/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE UTICA NATIONAL INSURANCE COMPANY OF OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH Index No. 809591/2020 INSTITUTE CENTRAL SCHOOL DISTRICT, Plaintiff, AFFIDAVIT OF ATTORNEY MARK P. DELLA POSTA CONCEPT CONSTRUCTION CORP., ARRIC CORP., GUARD CONTRACTING CORP., and STROMECKI ENGINEERS, P.C., Defendants. STATE OF NEW YORK ) COUNTY OF ERIE ) ss.: CITY OF BUFFALO ) MARK P. DELLA POSTA, ESQ., being duly sworn, deposes and says: 1. I am an attorney at law, duly authorized to practice in the State of New York, and am the attorney for the defendant, Arric Corp., ("Arric"). 2. I make this affidavit in support of Arric's motion for: a. An order, pursuant to CPLR §§3211 and 3212, granting summary judgment dismissing the plaintiff's Complaint as against Arric, with prejudice; b. An order, pursuant to CPLR §§3211 and 3212, granting summary co-defendants' judgment dismissing the cross-claims against Arric, with prejudice; Page 1 of 8 1 of 8 FILED: ERIE COUNTY CLERK 02/03/2021 12:55 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/03/2021 c. An order granting Arric such other, further and different relief as to the Court seems just, proper and equitable, together with the costs and disbursements of this motion. BRIEF BACKGROUND 3. By way of brief background, the plaintiff, Utica National Insurance Company of Ohio ("Utica National"), brought this subrogation to recover alleged damages it claims to have paid to its insured, the Springville-Griffith Institute Central School District ("Springville-Griffith"), arising out of an incident that occurred on or about July 4, 2019, wherein a portion of a building collapsed while undergoing work in connection with a public construction project ("the Incident"). Springville-Griffith was the owner of the project, which was known as, "Springville-Griffith Institute Central School District - Capital Project - PTECH located at 307 Newman Street, in Academy", Springville, New York ("the Project"). 4. Springville-Griffith had contracted with the defendant, Concept Construction Corp. ("Concept"), to perform the general construction work for the Project. Concept then subcontracted certain portions of its work to the defendant, Arric Corp. ("Arric"). Arric, in turn, subcontracted certain portions of its work to Guard Contracting Corp. ("Guard") and Guard hired the defendant, Stromecki Engineers, P.C. ("Stromecki"), to perform certain engineering work in connection with Arric's work on the Project. PROCEDURAL POSTURE Page 2 of 8 2 of 8 FILED: ERIE COUNTY CLERK 02/03/2021 12:55 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/03/2021 5. Utica National commenced this action by electronically filing a Summons and an unverified Complaint in the Erie County Clerk's Office on August 31, 2020. The Summons and Complaint was then served upon Arric, and Utica National's attorneys gave extensions to Guard and to Arric to answer or otherwise move with respect to the Complaint that currently extend through February 5, 2021. Guard and Arric have not filed answers to the Complaint, but Concept and Stromecki have both filed answers. Both of their answers contain cross-claims against Arric. (A true copy of Utica National's Summons and Complaint is annexed hereto as Exhibit B, and true copies of Concept's and Stromecki's Answers to the Complaint are annexed hereto as Exhibits C and D, respectively.) 6. There has been no discovery among the parties to date. UTICA NATIONAL'S COMPLAINT 7. According its Complaint (Ex. B), Utica National issued a policy of insurance to Springville-Griffith which insured against damages to Springville-Griffith's property at 307 Newman Street, Springville, New York. (Ex. B, 14) Utica National further alleges that it paid Springville-Griffith $152,558.88 under its policy for the damages to Springville-Griffith's property at that address as a result of the Incident. (Ex. Utica National brought this as subrogee of Springville- B, ¶¶20, 23-24) action, Griffith, to recover the amount it paid to Springville-Griffith, alleging that the Incident was caused by the negligence of the defendants. (Ex. B, ¶¶20-25) ARRIC'S MOTION Page 3 of 8 3 of 8 FILED: ERIE COUNTY CLERK 02/03/2021 12:55 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/03/2021 8. Arric is making this motion because, under the contractual documents among and governing the parties herein for the Project, Utica National had no right to bring this action. The contract documents for the Project were, upon information and belief, prepared on behalf of Springville-Griffith by its Architect or Construction Manager. They contain a broad waiver of subrogation provision wherein Springville-Griffith and Concept and all other parties involved in the Project were required to waive, and did, in fact, waive, their rights of subrogation against all other parties. Thus, Utica National, which stands in the shoes of Springville-Griffith in asserting its claim herein, is bound by these provisions and is barred and precluded from proceeding with this action. 9. Annexed hereto as Exhibit A is an Affidavit of Paul Keller, the President of Arric. In his affidavit he identifies and annexes as exhibits various contracts among the parties. Annexed as Exhibit E is a copy of Springville-Griffith's contract with Concept, and attached as Exhibit F is a copy of the general conditions to that contract. A copy of Concept's contract with Arric is annexed as Exhibit G, and a copy of Arric's contract with Guard is annexed as Exhibit H. Guard did not have a written contract materials" with Stromecki. Guard hired Stromecki on a "time and basis, wherein it requested Stromecki to perform certain engineering work, and Stromecki billed Guard for the time it spent and materials it utilized in performing that work. 10. Springville-Griffith's contract with Concept consisted of an American Institute of Architects ("AIA") Standard Form of Agreement Between Owner and Contractor ("Agreement") (Ex. E) and a set of General Conditions of the Contract of Construction ("General Conditions") (Ex. F). Article 9 of the Agreement (Ex. E) Page 4 of 8 4 of 8 FILED: ERIE COUNTY CLERK 02/03/2021 12:55 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/03/2021 enumerates the contract documents, and states that they include the General Conditions (Ex. F), Supplementary General Conditions, if any, Specifications, Drawings and various enumerated Addenda. There were no Supplementary General Conditions on the Project. I have reviewed all of the contract documents, the only contract documents that are relevant to the issues involved in this motion are the Agreement (Ex. E) and General Conditions (Ex. F). 11. Article 11 of the General Conditions (Ex. F), relating to "Insurance and Bonds", contains the following provision: 11.3.7 Waivers of Subrogation. The Owner and Contractor waive all rights against (1) each other and any of their respective subcontractors, sub-subcontractors, agents and employees, and (2) the Construction Manager, Construction Manager's consultants, Architect, Architect's consultants, separate contractors described in Article 6, if any, and any of their respective subcontractors, sub-subcontractors, agents, and employees, for damages caused by fire or other causes of loss to the extent of proceeds under property insurance obtained pursuant to this Section 11.3 or other property insurance applicable to the Work, except such rights as the Owner and Contractor may have to the proceeds of such insurance held by the Owner. The Owner or Contractor, as appropriate, shall require of the Construction Manager, Construction Manager's consultants, Architect, Architect's consultants, Owner's separate contractors described in Article 6, if any, and any of their respective subcontractors, sub-subcontractors, agents, and employees, by appropriate written agreements, similar waivers each in favor of other parties enumerated in this Section 11.3.7. The policies must provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation is effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity has an insurable interest in the property damaged. Page 5 of 8 5 of 8 FILED: ERIE COUNTY CLERK 02/03/2021 12:55 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/03/2021 12. As the Court can see from the first sentence of Section 11.3.7, "The Owner" (Springville-Griffith) has clearly and unequivocally waived its subrogation rights "Contractor" against the (Concept) and all of its subcontractors and sub-subcontractors, which include Arric, Guard and Stromecki. This is obviously a very broad provision which is intended to be binding upon every type of party involved in the Project and to accomplish a complete waiver of rights of subrogation by all of them as against each other with respect to property damage claims covered by insurance. It binds the owner and contactor, and all of their subcontractors, sub-subcoñtractors construction managers, architects and consultants involved in the Project. 13. Section 11.3.7 is unambiguous and thus this Court can decide the construction of Section 11.3.7 as a question of law, because it is well settled that, "On a motion for summary judgment, the construction of an unambiguous contract is a question of law for the court to pass on (Mallad Constr. Corp. v. County Fed. Sav. & 96)." Loan Assn, 32 N.Y.2d 285, 291, 344 N.Y.S.2d 925, 298 N.E.2d Lake Construction & Development Corporation v. City of New York, 211 A.D.2d 514, 515, 621 N.Y.S.2d 337 (1st Dept. 1995). 14. Section 11.3.7 is mirrored in Concept's contract with Arric (Ex. G) and in Arric's contract with Guard (Ex. H). In Concept's contract with Arric (Ex. G), a waiver of subrogation rights is contained in Section 13.7 of the attached General Conditions for Subcontract and is also required in the attached page of insurance requirements. In Arric's contract with Guard (Ex. H), a waiver of subrogation rights is contained in Section 13.8 and is also required on page 2 of the attached Insurance Requirements. Page 6 of 8 6 of 8 FILED: ERIE COUNTY CLERK 02/03/2021 12:55 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/03/2021 15. Under Section 11.3.7, if any insurance carrier for any of the parties involved in the Project pays amounts for covered property damage, it cannot assert a subrogation claim or bring an action against any other party in the Project. The insurance carrier must absorb the loss itself. 16. As a consequence of the foregoing, Utica National is barred and precluded from bringing this subrogation action as subrogee of Springville-Griffith, because Springville Griffith waived its rights of subrogation against all other parties involved in the Project. Again, Utica National stands in the shoes of, and is bound by, Springville-Griffith's contractual obligations with respect to the Project. 17. Accordingly, Arric is entitled to an order, pursuant to CPLR §§3211 and 3212, granting summary judgment dismissing the plaintiff's Complaint as against Arric, with prejudice. 18. In addition, for the same reasons, Arric is entitled to an order, pursuant to co-defendants' CPLR §§3211 and 3212, granting summary judgment dismissing the cross-claims asserted against Arric, with prejudice. As shown herein, the co-defendants were also parties involved in the Project, and they also waived their rights of subrogation against all other parties involved in the Project for the type of claim asserted in this action. are barred and precluded from cross- Thus, they asserting claims against Arric. CONCLUSION 19. In view of the foregoing, I respectfully request this Honorable Court to grant: Page 7 of 8 7 of 8 FILED: ERIE COUNTY CLERK 02/03/2021 12:55 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/03/2021 a. An order, pursuant to CPLR §§3211 and 3212, granting summary judgment dismissing Utica National's Complaint as against Arric, with prejudice; b. An order, pursuant to CPLR §§3211 and 3212, granting summary co-defendants' judgment dismissing the cross-claims against Arric, with prejudice; c. An order granting Arric such other, further and different relief as to the Court seems just, proper and equitable, together with the costs and disbursements of this motion. IARR . DELLA POSTA Sworn to before me this 3rd d of February, 2021. cq lin Miayden Public - State of New York Notary Qualified in Erie County License #01HA4994529 My Commission Expires: 04/06/22 Page 8 of 8 8 of 8