Preview
FILED: ERIE COUNTY CLERK 03/23/2021 03:04 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/23/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
UTICA NATIONAL INSURANCE COMPANY OF
OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH
INSTITUTE CENTRAL SCHOOL DISTRICT, REPLY AFFIDAVIT
Plaintiff, Index No. 809591/2020
-vs-
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 )
RICHARD A. CLACK, 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, Guard Contracting Corp. ("Guard").
2. I make this affidavit in reply to the Attorney Affirmation in Opposition to
Motions for Summary Judgment of Plaintiff's counsel, Kris E. Lawrence, Esq. I also
make this affidavit in further support of Guard's motion for summary judgment
co-defendants' cross-
dismissing the plaintiff's Complaint as against Guard and the
claims against Guard, with prejudice.
3. In his affirmation, Plaintiff's counsel has virtually admitted that the
defendants, Concept Construction Corp. ("Concept"), Arric Corp. ("Arric") and Guard
1 of 7
FILED: ERIE COUNTY CLERK 03/23/2021 03:04 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/23/2021
are entitled to summary judgment dismissing the Complaint as against them by virtue
of the fact that the plaintiff, Utica National Insurance Company of Ohio ("Utica
National"), as subrogee of the Springville-Griffith Institute Central School District
("Springville-Griffith"), was barred from commencing this subrogation action as against
Concept, Arric and Guard the waiver of subrogation provision contained in the
by
American Institute of Architects ("AIA") General Conditions of the Contract of
Construction ("General (Ex. F to prior between Springville-
Conditions") my affidavit)
Griffith and Concept. (Lawrence Aff., $31) Indeed, Plaintiff's counsel does not state
that he is making his affirmation in opposition to Concept's, Arric's or Guard's motions
for summary judgment dismissing the Complaint as against them. Rather, he states he
is only his affirmation in opposition to Concept's, Arric's and Guard's motions
making
to dismiss the cross-claims of the defendant, Stromecki Engineers, P.C. ("Stromecki"),
against them and in opposition to Stromecki's motion for summary judgment.
(Lawrence Aff., 12)
4. The fact is that Utica National's commencement of this lawsuit against
Concept, Arric and Guard was a breach of the contract between Springville-Griffith and
Concept, in flagrant violation of the waiver of subrogation provision contained in the
contract, and the improper commencement of this lawsuit has caused, and continues to
cause, Concept, Arric and Guard substantial unnecessary legal expenses.
5. Plaintiff's counsel argues, however, that the Complaint should not be
dismissed against Concept, Arric and Guard, and instead, Stromecki's cross-claims
should be converted into a action against them. (Lawrence Aff., ¶38)
third-party
2 of 7
FILED: ERIE COUNTY CLERK 03/23/2021 03:04 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/23/2021
6. Plaintiff's counsel's is that Stromecki is not covered the waiver
theory by
of subrogation provision that admittedly covers all other parties to this case. Plaintiff's
counsel asserts that Stromecki, as a consultant hired by Guard, does not come within
the purview of the waiver of subrogation provision.
7. However, a review of the waiver of subrogation provision shows that it is
a broad-sweeping provision, clearly intended to apply to all parties working on the
project at issue, 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. The owner, all of its subcontractors and consultants, the architect and all of
its subcontractors and consultants, the construction manager and all of its
subcontractors and consultants, the contractor and all of its subcontractors and
consultants, the subcontractors and all of their sub-subcontractors and consultants and
all of the sub-subcontractors, such as Guard, and the consultant it chose to hire
(Stromecki), are all obviously encompassed by this provision.
8. in the waiver of subrogation provision indicates that carve-
Nothing any
out is intended for any party participating in the project. Had the AIA intended any
different result, it could have been spelled it out in the waiver of subrogation provision.
9. It is obvious that the intent of this AIA standard form waiver of
subrogation provision is to prevent and save all of the parties to projects of this nature
from being entangled in litigation over property damage claims that are covered and
paid under applicable property casualty insurance policies. Under Section 11.3.7, all
parties waive their rights of subrogation as against each other, and thus, if any
insurance carrier for any of the parties involved in the project pays amounts for covered
3 of 7
FILED: ERIE COUNTY CLERK 03/23/2021 03:04 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/23/2021
property damage, it cannot assert a subrogation claim or an action against any
bring
other party involved in the project. The insurance carrier must absorb the loss itself.
10. Moreover, the waiver of subrogation provision does not even utilize the
"Subcontractor"
defined terms for either (General or "Sub-
Conditions, §5.1.1)
subcontractor"
(General Conditions, §5.1.2) therein. Pursuant to Section 1.3 of the
General Conditions, defined terms are capitalized, and these terms are not capitalized
in the waiver of subrogation provision. Elsewhere throughout the General Conditions,
"Subcontractor" "Sub-
when so intended, the terms capitalized defined terms and
subcontractor", are used. (See, as examples, §§1.22, 5.12, 5.3, 9.6.3, 10.2.1.) In fact, the
"subcontractor" "sub-subcontractor"
terms, and appear a total of 49 times in the
General Conditions, and they are capitalized in all provisions, except for Sections 3.4.10,
3.18.11 and the waiver of subrogation provision, Section 11.3.7. In these three sections,
"subcontractors" "sub-subcontractors"
the references to or are general, and they are not
capitalized because they are intended to be general terms, encompassing all tiers of
subcontractors on the project. They are probably used in that undefined manner to
avoid having to make the waiver of subrogation provision, and these other provisions,
overly complicated by having to set forth further tiers of subcontracting, beyond the
level of sub-subcontractors.
"subcontractors"
11. The lack of use of capitalized defined terms for or "sub-
subcontractors"
is evident in Section 11.3.7:
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,
4 of 7
FILED: ERIE COUNTY CLERK 03/23/2021 03:04 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/23/2021
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 would
entity
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. (bold and italics
emphasis added)
12. Plaintiff's counsel also makes the argument that Stromecki is somehow
not entitled to the benefit of the waiver of subrogation provision by claiming that
Stromecki did not have any contract with respect to the project. However, that is not
the case at all. While Stomecki did not have a written contract with Guard, it had an
materials"
agreement with Guard to perform its engineering services on a "time and
basis, wherein Stromecki billed Guard for the time it spent and materials it utilized in
performing its work. (Guard Aff., $6, Ex. A to my prior affidavit) An agreement to
perform services on a time and materials basis is certainly a contract. Thus, this premise
of Plaintiff's counsel's opposition to Stromecki's motion for judgment has no
summary
foundation.
5 of 7
FILED: ERIE COUNTY CLERK 03/23/2021 03:04 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/23/2021
13. Plaintiff's counsel's ultimate argument is that, if the Court were to
determine that Stromecki was not entitled to the benefit of the waiver of subrogation
provision applicable to all other parties on the project, the Court should not dismiss the
Complaint as against Concept, Arric and Guard, but instead, should convert
Stromecki's cross-claims into a third-party action against them. (Lawrence Aff., 138)
This is a ludicrous argument. Utica National improperly breached the contract and
sued Concept, Arric and Guard, and it should not be rewarded for that
improperly
"end-run"
breach, and permitted to the waiver of subrogation provision, to thereby
prevent Concept, Arric and Guard from obtaini9ng summary judgment dismissing the
Complaint. The simple fact is that those parties are entitled to dismissal of the
Complaint against them, because they should never should have been defendants in
this case in the first place. If Stromecki were to be left in the case, and later thought it
had the right to bring a third-party action against any or all of these parties under the
agreements prevailing on the project, it could do so.
14. For the forgoing reasons, as well as the reasons set forth in my prior
affidavit in support of Guard's motion, it is respectfully submitted that Guard is entitled
to an order, pursuant to CPLR §§3211 and 3212, granting summary judgment
dismissing the plaintiff's Complaint as against Guard, with prejudice, and an order,
6 of 7
FILED: ERIE COUNTY CLERK 03/23/2021 03:04 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/23/2021
pursuant to CPLR §§3211 and judgment the co-
3212, granting summary dismissing
defendants'
cross-claims asserted against uard, ith prejudice.
RICHARD A. CLACK
Sworn to before me this
day of March, 2021
Notary P ic
RICHARD S. JUDA, JR.
New Yok
Notary Public, State of
Qualified in Erie County
expires April 30,2
My Commission
7 of 7
Preview
FILED: ERIE COUNTY CLERK 03/23/2021 03:04 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/23/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE UTICA NATIONAL INSURANCE COMPANY OF OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH INSTITUTE CENTRAL SCHOOL DISTRICT, REPLY AFFIDAVIT Plaintiff, Index No. 809591/2020 -vs- 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 ) RICHARD A. CLACK, 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, Guard Contracting Corp. ("Guard"). 2. I make this affidavit in reply to the Attorney Affirmation in Opposition to Motions for Summary Judgment of Plaintiff's counsel, Kris E. Lawrence, Esq. I also make this affidavit in further support of Guard's motion for summary judgment co-defendants' cross- dismissing the plaintiff's Complaint as against Guard and the claims against Guard, with prejudice. 3. In his affirmation, Plaintiff's counsel has virtually admitted that the defendants, Concept Construction Corp. ("Concept"), Arric Corp. ("Arric") and Guard 1 of 7 FILED: ERIE COUNTY CLERK 03/23/2021 03:04 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/23/2021 are entitled to summary judgment dismissing the Complaint as against them by virtue of the fact that the plaintiff, Utica National Insurance Company of Ohio ("Utica National"), as subrogee of the Springville-Griffith Institute Central School District ("Springville-Griffith"), was barred from commencing this subrogation action as against Concept, Arric and Guard the waiver of subrogation provision contained in the by American Institute of Architects ("AIA") General Conditions of the Contract of Construction ("General (Ex. F to prior between Springville- Conditions") my affidavit) Griffith and Concept. (Lawrence Aff., $31) Indeed, Plaintiff's counsel does not state that he is making his affirmation in opposition to Concept's, Arric's or Guard's motions for summary judgment dismissing the Complaint as against them. Rather, he states he is only his affirmation in opposition to Concept's, Arric's and Guard's motions making to dismiss the cross-claims of the defendant, Stromecki Engineers, P.C. ("Stromecki"), against them and in opposition to Stromecki's motion for summary judgment. (Lawrence Aff., 12) 4. The fact is that Utica National's commencement of this lawsuit against Concept, Arric and Guard was a breach of the contract between Springville-Griffith and Concept, in flagrant violation of the waiver of subrogation provision contained in the contract, and the improper commencement of this lawsuit has caused, and continues to cause, Concept, Arric and Guard substantial unnecessary legal expenses. 5. Plaintiff's counsel argues, however, that the Complaint should not be dismissed against Concept, Arric and Guard, and instead, Stromecki's cross-claims should be converted into a action against them. (Lawrence Aff., ¶38) third-party 2 of 7 FILED: ERIE COUNTY CLERK 03/23/2021 03:04 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/23/2021 6. Plaintiff's counsel's is that Stromecki is not covered the waiver theory by of subrogation provision that admittedly covers all other parties to this case. Plaintiff's counsel asserts that Stromecki, as a consultant hired by Guard, does not come within the purview of the waiver of subrogation provision. 7. However, a review of the waiver of subrogation provision shows that it is a broad-sweeping provision, clearly intended to apply to all parties working on the project at issue, 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. The owner, all of its subcontractors and consultants, the architect and all of its subcontractors and consultants, the construction manager and all of its subcontractors and consultants, the contractor and all of its subcontractors and consultants, the subcontractors and all of their sub-subcontractors and consultants and all of the sub-subcontractors, such as Guard, and the consultant it chose to hire (Stromecki), are all obviously encompassed by this provision. 8. in the waiver of subrogation provision indicates that carve- Nothing any out is intended for any party participating in the project. Had the AIA intended any different result, it could have been spelled it out in the waiver of subrogation provision. 9. It is obvious that the intent of this AIA standard form waiver of subrogation provision is to prevent and save all of the parties to projects of this nature from being entangled in litigation over property damage claims that are covered and paid under applicable property casualty insurance policies. Under Section 11.3.7, all parties waive their rights of subrogation as against each other, and thus, if any insurance carrier for any of the parties involved in the project pays amounts for covered 3 of 7 FILED: ERIE COUNTY CLERK 03/23/2021 03:04 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/23/2021 property damage, it cannot assert a subrogation claim or an action against any bring other party involved in the project. The insurance carrier must absorb the loss itself. 10. Moreover, the waiver of subrogation provision does not even utilize the "Subcontractor" defined terms for either (General or "Sub- Conditions, §5.1.1) subcontractor" (General Conditions, §5.1.2) therein. Pursuant to Section 1.3 of the General Conditions, defined terms are capitalized, and these terms are not capitalized in the waiver of subrogation provision. Elsewhere throughout the General Conditions, "Subcontractor" "Sub- when so intended, the terms capitalized defined terms and subcontractor", are used. (See, as examples, §§1.22, 5.12, 5.3, 9.6.3, 10.2.1.) In fact, the "subcontractor" "sub-subcontractor" terms, and appear a total of 49 times in the General Conditions, and they are capitalized in all provisions, except for Sections 3.4.10, 3.18.11 and the waiver of subrogation provision, Section 11.3.7. In these three sections, "subcontractors" "sub-subcontractors" the references to or are general, and they are not capitalized because they are intended to be general terms, encompassing all tiers of subcontractors on the project. They are probably used in that undefined manner to avoid having to make the waiver of subrogation provision, and these other provisions, overly complicated by having to set forth further tiers of subcontracting, beyond the level of sub-subcontractors. "subcontractors" 11. The lack of use of capitalized defined terms for or "sub- subcontractors" is evident in Section 11.3.7: 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, 4 of 7 FILED: ERIE COUNTY CLERK 03/23/2021 03:04 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/23/2021 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 would entity 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. (bold and italics emphasis added) 12. Plaintiff's counsel also makes the argument that Stromecki is somehow not entitled to the benefit of the waiver of subrogation provision by claiming that Stromecki did not have any contract with respect to the project. However, that is not the case at all. While Stomecki did not have a written contract with Guard, it had an materials" agreement with Guard to perform its engineering services on a "time and basis, wherein Stromecki billed Guard for the time it spent and materials it utilized in performing its work. (Guard Aff., $6, Ex. A to my prior affidavit) An agreement to perform services on a time and materials basis is certainly a contract. Thus, this premise of Plaintiff's counsel's opposition to Stromecki's motion for judgment has no summary foundation. 5 of 7 FILED: ERIE COUNTY CLERK 03/23/2021 03:04 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/23/2021 13. Plaintiff's counsel's ultimate argument is that, if the Court were to determine that Stromecki was not entitled to the benefit of the waiver of subrogation provision applicable to all other parties on the project, the Court should not dismiss the Complaint as against Concept, Arric and Guard, but instead, should convert Stromecki's cross-claims into a third-party action against them. (Lawrence Aff., 138) This is a ludicrous argument. Utica National improperly breached the contract and sued Concept, Arric and Guard, and it should not be rewarded for that improperly "end-run" breach, and permitted to the waiver of subrogation provision, to thereby prevent Concept, Arric and Guard from obtaini9ng summary judgment dismissing the Complaint. The simple fact is that those parties are entitled to dismissal of the Complaint against them, because they should never should have been defendants in this case in the first place. If Stromecki were to be left in the case, and later thought it had the right to bring a third-party action against any or all of these parties under the agreements prevailing on the project, it could do so. 14. For the forgoing reasons, as well as the reasons set forth in my prior affidavit in support of Guard's motion, it is respectfully submitted that Guard is entitled to an order, pursuant to CPLR §§3211 and 3212, granting summary judgment dismissing the plaintiff's Complaint as against Guard, with prejudice, and an order, 6 of 7 FILED: ERIE COUNTY CLERK 03/23/2021 03:04 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/23/2021 pursuant to CPLR §§3211 and judgment the co- 3212, granting summary dismissing defendants' cross-claims asserted against uard, ith prejudice. RICHARD A. CLACK Sworn to before me this day of March, 2021 Notary P ic RICHARD S. JUDA, JR. New Yok Notary Public, State of Qualified in Erie County expires April 30,2 My Commission 7 of 7