Preview
) OUN NK 40 DM INDEX NO. 809591/2020
NYSCEF BOC. NO. 62 RECEIVED NYSCEF 03/26/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
UTICA NATIONAL INSURANCE COMPANY OF
OHIO AS SUBROGEE OF SPRINGVILLE-
GRIFFITH INSTITUTE CENTRAL SCHOOL
DISTRICT, Memorandum Decision
Plaintiff, Index #: 809591/2020
VS.
CONCEPT CONSTRUCTION CORP.,
ARRIC CORP.,
GUARD CONTRACTING CORP., and
STROMECKI ENGINEERS, P.C.,
Defendants.
MURA LAW GROUP, PLLC.
Kris E. Lawrence, Esq.
Attorney for Plaintiff
DUKE, HOLZMAN, PHOTADIS & GRESENS LLP
Elizabeth Kraengel, Esq.
Attorney for Defendant, Concept
Construction Corporation.
WALSH, ROBERTS & GRACE
Mark Della Posta, Esq.
Attorney for Defendant Arris Corporation
LAW OFFICES OF RICHARD A. CLACK
Richard A. Klack, Esq.
Attorney for Defendant Guard Contracting
Corporation
SUGARMAN LAW FIRM, LLP
Brian Suter, Esq.
Attorney for Defendant Stromecki
Engineers, P.C.
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Colaiacovo, J.
Defendants herein each have filed motions seeking summary judgment
pursuant to CPLR §§ 3211 and 3212 and an order dismissing the Plaintiff’s
complaint. Defendants Arric Corporation (hereinafter “Arric”) and Guard
Contracting Corporation (hereinafter “Guard”) also seek summary judgment
dismissing cross-claims filed by co-defendants. The Court has waived oral
argument pursuant to 22 NYCRR § NYCRR §202.8. The Court’s decision is as
follows.
Statement of Facts
{n 2019, Springville-Griffith Institute School District (hereinafter “School
District”) contracted with Concept Construction Corporation (hereinafter
“Concept”) to perform general construction work for a project at the school.
Concept thereafter retained the remaining Defendants, Arric and Guard, as
subcontractors to perform certain portions of the work. Guard hired Defendant
Stromecki Engineers, P.C. (hereinafter “Stromecki”) to perform engineering
work in connection with Guard’s work on the project. During the project, a
portion of a roof structure collapsed on a building that was under construction.
The School District alleged that the damage the building sustained was the result
of Defendant’s negligent work. As a result of the roof collapse, the School
District alleged damages in the amount of $152,559.88. This amount was paid by
its insurer, Utica National Insurance Company of Ohio (hereinafter “Utica
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National”) The School District subrogated its rights to Utica National, who in
turn commenced this action against the Defendants.
Defendants now seek summary judgment, as a matter of law, in light of
the waiver of subrogation rights in the School Districts contract with Concept.
In particular, §11.3.7 of the contract provides:
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.
All of the Defendants maintain that the School District waived its subrogation
rights against the Contractor and all of its subcontractors, which include Arric,
Guard, and Stromecki. Arric and Guard also argue that these broad waivers
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prohibit the cross-claims filed against them. As such, Defendants insist that
summary judgment is entirely appropriate. In reply, Plaintiff’s claim that the
motions are premature. Further, Plaintiff’s argue that Stromecki cannot rely on
the waiver language, as there exists no contract between the School District and
Stromecki. Stromecki, hired by Guard, cannot be protected by the waiver
language according to Plaintiff and, accordingly, their motion must be denied.
Decision
Although the moving Defendants seek "dismissal" pursuant to CPLR § 3211
of the Plaintiffs complaint or “summary judgment” pursuant to CPLR
§ 3211 and CPLR § 3212, what each of the moving Defendants actually seeks is
dismissal of the claims against them on the merits, based upon one of the
enumerated grounds in CPLR § 3211, or phrased differently, summary
judgment dismissing the complaint for failure to state a cause of action.
Accordingly, each moving Defendant bears the initial burden of setting forth
evidentiary facts to prove its prima facie case such that it would be entitled to
judgment in its favor, without the need for a trial. Zuckerman v. City of New
York, 49 N.Y.2d 557 (1980). Only if the moving Defendants meet this burden
does it then shift to plaintiff to submit evidentiary facts to controvert the
allegations set forth in the Defendants papers to demonstrate the existence of
a triable issue of fact. See Alvarez v. Prospect _Hosp., 68 N.Y.2d 320, 324
(FILED: ERIE COUNTY CLERK 0372672021 02:40 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 03/26/2021
(1986); Zuckerman y. City of New York, supra. The Court finds that Defendants
have met their burden and that the relief requested should be GRANTED.
Here, §11.3.7 of the contract clearly waives subrogation against
contractors and their subcontractors. The Court agrees that the comprehensive
nature of this waiver binds every type of contractor involved and warrants a clear
waiver of subrogation rights. This provision binds the School District, the
contractor and its subcontractors.
The Court agrees with Defendants that Hogdson v. Isolatek International
Corporation is binding. In Hodgson, the Fourth Department held that a similar
waiver provision in a contract precluded recovering monies paid under the
policy.' Hogdson, 300 A.D3d 1051 (4'" Dept. 2002). The Fourth Department
concluded that this waiver applied not only to contractors, but to
subcontractors, sub-subcontractors, and hired consultants.
Construction of an unambiguous contract is a matter of law and “[t]he
best evidence of what parties to a written agreement intend is what they say in
their writing. Thus, a written agreement that is complete, clear
and unambiguous on its face must be enforced according to the plain meaning of
its terms." See generally Beal Sav. Bank v. Sommer, 8 N.Y¥.3d 318 (2007);
Greenfield _v. Philles Records, 98 N.Y.2d 562 (2002); W.W.W. Assoc. _v.
1 Interestingly, in Hodgson, the section of the contract at issue was also §11.3.7 and, most likely, the
same general set of conditions of the contract of construction referenced herein,
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Giancontieri, 77 N.Y.2d 157 (1990); Charter Sch. for Applied Tech. v. Board of
Educ. for City Sch. Dist. of City of Buffalo, 105 A.D.3d 1460 (4" Dept. 2013).
The Court finds that this provision of the contract is unambiguous and
cannot be construed any other way other than to preclude subrogation as
intended by Plaintiff. Since the carrier here paid the amounts as alleged, it
cannot, by virtue of §11.3.7 of the contract, bring an action against any other
party involved in the project. As such, Plaintiff is barred from bringing this
action.
Accordingly, the motion made by each Defendant is hereby GRANTED and
the complaint against them is dismissed in its entirety. Further, the motions
made by Arric and Guard seeking to dismiss the cross-claims against it are also
GRANTED.
This shall constitute the decision of the Court. Each Defendant shall
submit an Order in accordance with this memorandum decision on notice to
Plaintiff.
baud
Hon, Emilio Colaiacovo. J.S.C.
March 26, 2021
ENTER
Buffalo, New York
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) OUN NK 40 DM INDEX NO. 809591/2020 NYSCEF BOC. NO. 62 RECEIVED NYSCEF 03/26/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE UTICA NATIONAL INSURANCE COMPANY OF OHIO AS SUBROGEE OF SPRINGVILLE- GRIFFITH INSTITUTE CENTRAL SCHOOL DISTRICT, Memorandum Decision Plaintiff, Index #: 809591/2020 VS. CONCEPT CONSTRUCTION CORP., ARRIC CORP., GUARD CONTRACTING CORP., and STROMECKI ENGINEERS, P.C., Defendants. MURA LAW GROUP, PLLC. Kris E. Lawrence, Esq. Attorney for Plaintiff DUKE, HOLZMAN, PHOTADIS & GRESENS LLP Elizabeth Kraengel, Esq. Attorney for Defendant, Concept Construction Corporation. WALSH, ROBERTS & GRACE Mark Della Posta, Esq. Attorney for Defendant Arris Corporation LAW OFFICES OF RICHARD A. CLACK Richard A. Klack, Esq. Attorney for Defendant Guard Contracting Corporation SUGARMAN LAW FIRM, LLP Brian Suter, Esq. Attorney for Defendant Stromecki Engineers, P.C. 1 ) OUN NK 40 DM INDEX NO. 809591/2020 NYSCEF BOC. NO. 62 RECEIVED NYSCEF: 03/26/2021 Colaiacovo, J. Defendants herein each have filed motions seeking summary judgment pursuant to CPLR §§ 3211 and 3212 and an order dismissing the Plaintiff’s complaint. Defendants Arric Corporation (hereinafter “Arric”) and Guard Contracting Corporation (hereinafter “Guard”) also seek summary judgment dismissing cross-claims filed by co-defendants. The Court has waived oral argument pursuant to 22 NYCRR § NYCRR §202.8. The Court’s decision is as follows. Statement of Facts {n 2019, Springville-Griffith Institute School District (hereinafter “School District”) contracted with Concept Construction Corporation (hereinafter “Concept”) to perform general construction work for a project at the school. Concept thereafter retained the remaining Defendants, Arric and Guard, as subcontractors to perform certain portions of the work. Guard hired Defendant Stromecki Engineers, P.C. (hereinafter “Stromecki”) to perform engineering work in connection with Guard’s work on the project. During the project, a portion of a roof structure collapsed on a building that was under construction. The School District alleged that the damage the building sustained was the result of Defendant’s negligent work. As a result of the roof collapse, the School District alleged damages in the amount of $152,559.88. This amount was paid by its insurer, Utica National Insurance Company of Ohio (hereinafter “Utica 2 FILED: ERIE COUNTY INDEX NO. 809591/2020 CLERK 0372672021 02:40 PM NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 03/26/2021 National”) The School District subrogated its rights to Utica National, who in turn commenced this action against the Defendants. Defendants now seek summary judgment, as a matter of law, in light of the waiver of subrogation rights in the School Districts contract with Concept. In particular, §11.3.7 of the contract provides: 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. All of the Defendants maintain that the School District waived its subrogation rights against the Contractor and all of its subcontractors, which include Arric, Guard, and Stromecki. Arric and Guard also argue that these broad waivers 3 kK DIV INDEX NO. 809591/2020 ) OUN 40 NYSCEF BOC. NO. 62 RECEIVED NYSCEF: 03/26/2021 prohibit the cross-claims filed against them. As such, Defendants insist that summary judgment is entirely appropriate. In reply, Plaintiff’s claim that the motions are premature. Further, Plaintiff’s argue that Stromecki cannot rely on the waiver language, as there exists no contract between the School District and Stromecki. Stromecki, hired by Guard, cannot be protected by the waiver language according to Plaintiff and, accordingly, their motion must be denied. Decision Although the moving Defendants seek "dismissal" pursuant to CPLR § 3211 of the Plaintiffs complaint or “summary judgment” pursuant to CPLR § 3211 and CPLR § 3212, what each of the moving Defendants actually seeks is dismissal of the claims against them on the merits, based upon one of the enumerated grounds in CPLR § 3211, or phrased differently, summary judgment dismissing the complaint for failure to state a cause of action. Accordingly, each moving Defendant bears the initial burden of setting forth evidentiary facts to prove its prima facie case such that it would be entitled to judgment in its favor, without the need for a trial. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). Only if the moving Defendants meet this burden does it then shift to plaintiff to submit evidentiary facts to controvert the allegations set forth in the Defendants papers to demonstrate the existence of a triable issue of fact. See Alvarez v. Prospect _Hosp., 68 N.Y.2d 320, 324 (FILED: ERIE COUNTY CLERK 0372672021 02:40 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 03/26/2021 (1986); Zuckerman y. City of New York, supra. The Court finds that Defendants have met their burden and that the relief requested should be GRANTED. Here, §11.3.7 of the contract clearly waives subrogation against contractors and their subcontractors. The Court agrees that the comprehensive nature of this waiver binds every type of contractor involved and warrants a clear waiver of subrogation rights. This provision binds the School District, the contractor and its subcontractors. The Court agrees with Defendants that Hogdson v. Isolatek International Corporation is binding. In Hodgson, the Fourth Department held that a similar waiver provision in a contract precluded recovering monies paid under the policy.' Hogdson, 300 A.D3d 1051 (4'" Dept. 2002). The Fourth Department concluded that this waiver applied not only to contractors, but to subcontractors, sub-subcontractors, and hired consultants. Construction of an unambiguous contract is a matter of law and “[t]he best evidence of what parties to a written agreement intend is what they say in their writing. Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms." See generally Beal Sav. Bank v. Sommer, 8 N.Y¥.3d 318 (2007); Greenfield _v. Philles Records, 98 N.Y.2d 562 (2002); W.W.W. Assoc. _v. 1 Interestingly, in Hodgson, the section of the contract at issue was also §11.3.7 and, most likely, the same general set of conditions of the contract of construction referenced herein, 5 FILED: ERIE COUNTY INDEX NO. 809591/2020 CLERK 0372672021 02:40 PM NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 03/26/2021 Giancontieri, 77 N.Y.2d 157 (1990); Charter Sch. for Applied Tech. v. Board of Educ. for City Sch. Dist. of City of Buffalo, 105 A.D.3d 1460 (4" Dept. 2013). The Court finds that this provision of the contract is unambiguous and cannot be construed any other way other than to preclude subrogation as intended by Plaintiff. Since the carrier here paid the amounts as alleged, it cannot, by virtue of §11.3.7 of the contract, bring an action against any other party involved in the project. As such, Plaintiff is barred from bringing this action. Accordingly, the motion made by each Defendant is hereby GRANTED and the complaint against them is dismissed in its entirety. Further, the motions made by Arric and Guard seeking to dismiss the cross-claims against it are also GRANTED. This shall constitute the decision of the Court. Each Defendant shall submit an Order in accordance with this memorandum decision on notice to Plaintiff. baud Hon, Emilio Colaiacovo. J.S.C. March 26, 2021 ENTER Buffalo, New York