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FILED: ERIE COUNTY CLERK 04/08/2021 04:46 PM INDEX NO. 809591/2020
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/08/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
__
UTICA NATIONAL INSURANCE COMPANY OF
OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH
INSTITUTE CENTRAL SCHOOL DISTRICT, NOTICE OF ENTRY
Plaintiff, Index No. 809591/2020
-vs- Hon. Emilio Colaiacovo,
J.S.C.
CONCEPT CONSTRUCTION CORP.,
ARRIC CORP.,
GUARD CONTRACTING CORP., and
STROMECKI ENGINEERS, P.C.,
Defendants.
PLEASE TAKE NOTICE, that an Order of the Hon. Ernilio Colaiacovo, J.S.C., a
true copy of which is attached hereto, was signed on April 2, 2021, and entered in
duly
the Office of the Clerk of the County of Erie on April 5, 2021 at Docket No. 66.
DATED: Buffalo, New York
April 8, 2021
LAW O FICE OF RICHARD A. ACK
By:
Richard A. Clack, Esq., of Counsel
Attorneys for Defendant,
Guard Contracting Corp.
Office and P.O. Address
750 Cathedral Park Tower
37 Franklin Street
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Buffalo, New York 14202
Telephone: (716) 842-6230
TO: MURA & STORM, P.C.
(Kris E. Lawrence, Esq., of Counsel)
Office and P.O. Address
Attorneys for Plaintiff, Utica National Insurance
Company of Ohio, as Subrogee
930 Rand Building
14 Lafayette Square
Buffalo, New York 14203
Telephone: (716) 855-2800
DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP
(James W. Gresens, Esq., of Counsel)
Attorneys for Defendant, Concept Construction Corp.
Office and P.O. Address
701 Seneca Street, Suite 750
Buffalo, New York 14210
Telephone: (716) 855-1111
WALSH, ROBERTS & GRACE
(Mark P. Della Posta, Esq., of Counsel)
Attorneys for Defendant, Arric Corp.
Office and P.O. Address
400 Rand Building
14 Lafayette Square
Buffalo, New York 14203-1928
Telephone: (716) 856-1636
SUGARMAN LAW FIRM, LLP
(Brian Sutter, Esq., of Counsel)
Attorneys for Defendant, Stromecki Engineers, P.C.
Office and P.O. Address
1600 Rand Building
14 Lafayette Square
Buffalo, New York 14203
Telephone: (716) 847-2523
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At a Motion Term, Part 24, of the
Supreme Court, held in and for the
County of Erie, at the Erie County Hall,
25 Delaware Avenue, in the City of
New on the 26th of
Buffalo, York, day
March, 2021.
PRESENT: HON. EMILIO COLAIACOVO, T.S.C.
Justice Presiding
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
UTICA NATIONAL INSURANCE COMPANY OF
OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH
INSTITUTE CENTRAL SCHOOL DISTRICT, ORDER
Plaintiff, Index No. 809591/2020
-vs-
CONCEPT CONSTRUCTION CORP.,
ARRIC CORP.,
GUARD CONTRACTING CORP., and
STROMECKI ENGINEERS, P.C.,
Defendants.
___
The defendant, Guard Contracting Corp. ("Guard"), having moved this Court for
an order, pursuant to CPLR §§3211 and 3212, granting summary judgment dismissing
co-defendants'
the plaintiff's Complaint as against Guard and the cross-claims against
Guard, with prejudice, on the grounds that the plaintiff and co-defendants are barred
and precluded from this subrogation action against Guard and cross-
bringing asserting
claims against Guard because the plaintiff's insured and the co-defendants waived all
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rights of subrogation against any other parties involved in the underlying construction
project for the types of claims being asserted in this action in the contract documents
applicable to the construction project giving rise to the plaintiff's claim herein, as a
matter of law, and for an order granting Guard such other, further and different relief
as to the Court seems just, proper and equitable, together with the costs and
disbursements of this motion; and the defendant, Arric Corp. ("Arric"), having also
moved this Court for an order, pursuant to CPLR §§3211 and 3212, granting summary
co-defendants'
judgment dismissing the plaintiff's Complaint as against Arric and the
cross-claims against with on the grounds that the plaintiff and co-
Arric, prejudice,
defendants are barred and precluded from bringing this subrogation action against
Arric and cross-claims against Arric because the plaintiff's insured and the co-
asserting
defendants waived all rights of subrogation against any other parties involved in the
construction project for the types of claims being asserted in this action in
underlying
the contract documents applicable to the construction project giving rise to the
plaintiff's claim herein, as a matter of law, and for 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; and the defendant, Concept
Construction Corp. ("Concept"), having moved this Court for an order, pursuant to
CPLR §§3211 and 3212, granting summary judgment dismissing the plaintiff's
Complaint as against Concept and the cross-claim of the defendant, Stromecki
Engineers, P.C. ("Stromecki"), against Concept, with prejudice, and awarding costs
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and/or sanctions in the form of Concept's legal fees to dismiss this frivolous lawsuit
pursuant to Part 130 of the New York Uniform Trial Court Rules, on the grounds of
CPLR §§3211(a)(1), 3211(a)(7) and CPLR 3212, and Part 130 of the New York Uniform
Trial Court Rules, and for an order granting Concept such other, further and different
relief as to the Court seems just, proper and equitable, together with the costs and
disbursements of this motion; and Stromecki having moved this Court for an order,
pursuant to CPLR §3212, granting summary judgment dismissing the plaintiff's
Complaint as against Stromecki and any and all cross-claims asserted against
Stromecki; and said motions having duly come on to be heard; and
UPON reading and filing the Notice of Motion of the Law Offices of Richard A.
Clack, dated February 3, 2021, the Affidavit of Richard A. Clack, Esq., sworn to
February 3, 2021, the Affidavit of Christopher C. Guard, sworn to February 3, 2021and
the exhibits annexed thereto, the Notice of Motion to Disntiss of Walsh, Roberts & Grace
LLP, dated February 3, 2021, the Affidavit of Mark P. Della Posta, Esq., sworn to
February 3, 2021, together with Exhibits A through H annexed thereto, including the
Affidavit of Paul Keller, sworn to February 2, 2021, the Notice of Motion of Duke
Holzman Photiadis & Gresens LLP, dated March 5, 2021, the Affirmation of Elizabeth
A. Kraengel, Esq., dated March 5, 2021, the Affidavit of B. Michael Shevlin, sworn to
March 5, 2021, and the exhibits annexed thereto and referred to therein, the Notice of
Motion of the Sugarman Law Firm, LLP, dated March 10, 2021, the Affidavit of Brian
Sutter, Esq., sworn to March 10, 2021, and the exhibits annexed thereto, the Affidavit of
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James Stromecki, sworn to March 9, 2021,and the exhibit annexed thereto, and
Stromecki's Statement of Material Facts, dated March 23, 2021, in support of Guard's,
Arric's, Concept's and Stromecki's motions, as the case may be, and the Attorney
Affirmation in Opposition to Motions for Summary Judgment of Kris E. Lawrence, Esq.,
dated March 18, 2021, and the exhibits annexed thereto, and the plaintiff's Statement of
Material Facts, dated March 18, 2021, in opposition thereto, and the Reply Affirmation
of Elizabeth A. Kraengel, Esq., dated March 22, 2021, the Reply Affidavit of Brian Sutter,
Esq., sworn to March 23, 2021, and Stromecki's Response to Statement of Material Facts,
dated March 23, 2021, the Reply Affidavit of Richard A. Clack, Esq., sworn to March 23,
2021, the Reply Affidavit of Mark P. Della Posta, Esq., sworn to March 23, 2021,
Concept's Material Statement of Facts, dated March 24, 2021, and the letter of Mark P.
Della Posta, Esq. to the Hon. Emilio Colaiacovo, J.S.C., dated March 25, 2021, in further
support of Guard's, Arric's, Concept's and Stromecki's motions, as the case may be, and
the Court having waived oral argument of the motions pursuant to 22 NYCRR §202.8,
and upon all prior pleadings and proceedings herein, due deliberation having been had
thereon, and the Court having issued a Memorandum Decision, dated March 26, 2021, a
copy of which is annexed hereto as Exhibit A,
NOW, on motions of the Law Offices of Richard A. Clack, Walsh, Roberts &
Grace LLP, Duke Holzman Photiadis & Gresens LLP and the Sugarman Law Firm, LLP,
it is hereby
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ORDERED, that the plaintiff's Complaint is hereby dismissed as against Guard,
Arric, Concept and Stromecki, with prejudice, pursuant to CPLR §§3211 and 3212; and
it is further
ORDERED, that all cross-claims asserted, or which could have been asserted,
among or between Guard, Arric, Concept and Stromecki, are hereby dismissed, with
prejudice, pursuant to CPLR §§3211 and 3212.
HON. EMILIO COLAÏACOVO, J.S.C.
ENTER:
April 2, 2021
Buffalo, NY
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EXHIBIT A
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STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
UTICA NATIONAL INSURANCE COMPANY OF
OHIO AS SUBROGEE OF SPRINGVILLE-
GRIFFlTH INSTITUTE CENTRAL SCHOOL
DISTRICT, Mernorandum 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 Delta 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 Strornecki
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.
5tatement of Facts
In 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.
Coñcept thereafter retained the remaining Defendants, Arric and Guard, as
subcontractors to perform certain portions of the work. Guard hired Defendant
5tromecki Engi neers, 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 (hereimafter "Utica
2
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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
Preview
FILED: ERIE COUNTY CLERK 04/08/2021 04:46 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/08/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE __ UTICA NATIONAL INSURANCE COMPANY OF OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH INSTITUTE CENTRAL SCHOOL DISTRICT, NOTICE OF ENTRY Plaintiff, Index No. 809591/2020 -vs- Hon. Emilio Colaiacovo, J.S.C. CONCEPT CONSTRUCTION CORP., ARRIC CORP., GUARD CONTRACTING CORP., and STROMECKI ENGINEERS, P.C., Defendants. PLEASE TAKE NOTICE, that an Order of the Hon. Ernilio Colaiacovo, J.S.C., a true copy of which is attached hereto, was signed on April 2, 2021, and entered in duly the Office of the Clerk of the County of Erie on April 5, 2021 at Docket No. 66. DATED: Buffalo, New York April 8, 2021 LAW O FICE OF RICHARD A. ACK By: Richard A. Clack, Esq., of Counsel Attorneys for Defendant, Guard Contracting Corp. Office and P.O. Address 750 Cathedral Park Tower 37 Franklin Street 1 of 14 FILED: ERIE COUNTY CLERK 04/08/2021 04:46 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/08/2021 Buffalo, New York 14202 Telephone: (716) 842-6230 TO: MURA & STORM, P.C. (Kris E. Lawrence, Esq., of Counsel) Office and P.O. Address Attorneys for Plaintiff, Utica National Insurance Company of Ohio, as Subrogee 930 Rand Building 14 Lafayette Square Buffalo, New York 14203 Telephone: (716) 855-2800 DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP (James W. Gresens, Esq., of Counsel) Attorneys for Defendant, Concept Construction Corp. Office and P.O. Address 701 Seneca Street, Suite 750 Buffalo, New York 14210 Telephone: (716) 855-1111 WALSH, ROBERTS & GRACE (Mark P. Della Posta, Esq., of Counsel) Attorneys for Defendant, Arric Corp. Office and P.O. Address 400 Rand Building 14 Lafayette Square Buffalo, New York 14203-1928 Telephone: (716) 856-1636 SUGARMAN LAW FIRM, LLP (Brian Sutter, Esq., of Counsel) Attorneys for Defendant, Stromecki Engineers, P.C. Office and P.O. Address 1600 Rand Building 14 Lafayette Square Buffalo, New York 14203 Telephone: (716) 847-2523 2 of 14 FILED: ERIE COUNTY CLERK 04/08/2021 04:46 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/08/2021 INDEX NO. 809591/2020 FILED : ERIE COUNTY CLERK 04 /05/2021 11: 23 AM| NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/05/2021 At a Motion Term, Part 24, of the Supreme Court, held in and for the County of Erie, at the Erie County Hall, 25 Delaware Avenue, in the City of New on the 26th of Buffalo, York, day March, 2021. PRESENT: HON. EMILIO COLAIACOVO, T.S.C. Justice Presiding STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE UTICA NATIONAL INSURANCE COMPANY OF OHIO AS SUBROGEE OF SPRINGVILLE-GRIFFITH INSTITUTE CENTRAL SCHOOL DISTRICT, ORDER Plaintiff, Index No. 809591/2020 -vs- CONCEPT CONSTRUCTION CORP., ARRIC CORP., GUARD CONTRACTING CORP., and STROMECKI ENGINEERS, P.C., Defendants. ___ The defendant, Guard Contracting Corp. ("Guard"), having moved this Court for an order, pursuant to CPLR §§3211 and 3212, granting summary judgment dismissing co-defendants' the plaintiff's Complaint as against Guard and the cross-claims against Guard, with prejudice, on the grounds that the plaintiff and co-defendants are barred and precluded from this subrogation action against Guard and cross- bringing asserting claims against Guard because the plaintiff's insured and the co-defendants waived all 1 of 12 3 of 14 FILED: ERIE COUNTY CLERK 04/08/2021 04:46 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/08/2021 FILED ERIE COUNTY CLERK /05/2021 INDEX NO. 809591/2020 : 04 11: 23 AM) NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/05/2021 rights of subrogation against any other parties involved in the underlying construction project for the types of claims being asserted in this action in the contract documents applicable to the construction project giving rise to the plaintiff's claim herein, as a matter of law, and for an order granting Guard such other, further and different relief as to the Court seems just, proper and equitable, together with the costs and disbursements of this motion; and the defendant, Arric Corp. ("Arric"), having also moved this Court for an order, pursuant to CPLR §§3211 and 3212, granting summary co-defendants' judgment dismissing the plaintiff's Complaint as against Arric and the cross-claims against with on the grounds that the plaintiff and co- Arric, prejudice, defendants are barred and precluded from bringing this subrogation action against Arric and cross-claims against Arric because the plaintiff's insured and the co- asserting defendants waived all rights of subrogation against any other parties involved in the construction project for the types of claims being asserted in this action in underlying the contract documents applicable to the construction project giving rise to the plaintiff's claim herein, as a matter of law, and for 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; and the defendant, Concept Construction Corp. ("Concept"), having moved this Court for an order, pursuant to CPLR §§3211 and 3212, granting summary judgment dismissing the plaintiff's Complaint as against Concept and the cross-claim of the defendant, Stromecki Engineers, P.C. ("Stromecki"), against Concept, with prejudice, and awarding costs 2 of 12 4 of 14 FILED: ERIE COUNTY CLERK 04/08/2021 04:46 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 71 RECEIVED INDEX NYSCEF: 04/08/2021 809591/2020 NO. FILED ERIE CÖÚNTY CLERK 0 4 / 05 / 2 021 11 : 23 AM] NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/05/2021 and/or sanctions in the form of Concept's legal fees to dismiss this frivolous lawsuit pursuant to Part 130 of the New York Uniform Trial Court Rules, on the grounds of CPLR §§3211(a)(1), 3211(a)(7) and CPLR 3212, and Part 130 of the New York Uniform Trial Court Rules, and for an order granting Concept such other, further and different relief as to the Court seems just, proper and equitable, together with the costs and disbursements of this motion; and Stromecki having moved this Court for an order, pursuant to CPLR §3212, granting summary judgment dismissing the plaintiff's Complaint as against Stromecki and any and all cross-claims asserted against Stromecki; and said motions having duly come on to be heard; and UPON reading and filing the Notice of Motion of the Law Offices of Richard A. Clack, dated February 3, 2021, the Affidavit of Richard A. Clack, Esq., sworn to February 3, 2021, the Affidavit of Christopher C. Guard, sworn to February 3, 2021and the exhibits annexed thereto, the Notice of Motion to Disntiss of Walsh, Roberts & Grace LLP, dated February 3, 2021, the Affidavit of Mark P. Della Posta, Esq., sworn to February 3, 2021, together with Exhibits A through H annexed thereto, including the Affidavit of Paul Keller, sworn to February 2, 2021, the Notice of Motion of Duke Holzman Photiadis & Gresens LLP, dated March 5, 2021, the Affirmation of Elizabeth A. Kraengel, Esq., dated March 5, 2021, the Affidavit of B. Michael Shevlin, sworn to March 5, 2021, and the exhibits annexed thereto and referred to therein, the Notice of Motion of the Sugarman Law Firm, LLP, dated March 10, 2021, the Affidavit of Brian Sutter, Esq., sworn to March 10, 2021, and the exhibits annexed thereto, the Affidavit of 3 of 12 5 of 14 FILED: ERIE COUNTY CLERK 04/08/2021 04:46 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 71 RECEIVED INDEX NYSCEF: 04/08/2021 809591/2020 NO. FILED : ERIE COUNTY CLERK 0 4 / 05 /2 021 11 : 23 AM| NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/05/2021 James Stromecki, sworn to March 9, 2021,and the exhibit annexed thereto, and Stromecki's Statement of Material Facts, dated March 23, 2021, in support of Guard's, Arric's, Concept's and Stromecki's motions, as the case may be, and the Attorney Affirmation in Opposition to Motions for Summary Judgment of Kris E. Lawrence, Esq., dated March 18, 2021, and the exhibits annexed thereto, and the plaintiff's Statement of Material Facts, dated March 18, 2021, in opposition thereto, and the Reply Affirmation of Elizabeth A. Kraengel, Esq., dated March 22, 2021, the Reply Affidavit of Brian Sutter, Esq., sworn to March 23, 2021, and Stromecki's Response to Statement of Material Facts, dated March 23, 2021, the Reply Affidavit of Richard A. Clack, Esq., sworn to March 23, 2021, the Reply Affidavit of Mark P. Della Posta, Esq., sworn to March 23, 2021, Concept's Material Statement of Facts, dated March 24, 2021, and the letter of Mark P. Della Posta, Esq. to the Hon. Emilio Colaiacovo, J.S.C., dated March 25, 2021, in further support of Guard's, Arric's, Concept's and Stromecki's motions, as the case may be, and the Court having waived oral argument of the motions pursuant to 22 NYCRR §202.8, and upon all prior pleadings and proceedings herein, due deliberation having been had thereon, and the Court having issued a Memorandum Decision, dated March 26, 2021, a copy of which is annexed hereto as Exhibit A, NOW, on motions of the Law Offices of Richard A. Clack, Walsh, Roberts & Grace LLP, Duke Holzman Photiadis & Gresens LLP and the Sugarman Law Firm, LLP, it is hereby 4 of 12 6 of 14 FILED: ERIE COUNTY CLERK 04/08/2021 04:46 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/08/2021 INDEX NO. 809591/2020 FILED : ER1E COUNTY CLERK 04/05/2021 11: 23 AM| NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/05/2021 ORDERED, that the plaintiff's Complaint is hereby dismissed as against Guard, Arric, Concept and Stromecki, with prejudice, pursuant to CPLR §§3211 and 3212; and it is further ORDERED, that all cross-claims asserted, or which could have been asserted, among or between Guard, Arric, Concept and Stromecki, are hereby dismissed, with prejudice, pursuant to CPLR §§3211 and 3212. HON. EMILIO COLAÏACOVO, J.S.C. ENTER: April 2, 2021 Buffalo, NY 5 of 12 7 of 14 FILED: ERIE COUNTY CLERK 04/08/2021 04:46 PM INDEX NO. 809591/2020 W NYSCEF DOC.. NO. 71 RECEIVED INDEX NYSCEF: NO. 04/08/2021 809591/2020 COW'fY CLEE 04/05/2021 11·23 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/05/2021 EXHIBIT A 6 of 12 8 of 14 FILED: ERIE COUNTY CLERK 04/08/2021 04:46 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/08/2021 FILED : ERIE COUNTY CLERK 04 /05 /2021 23 INDEX NO. 809591/2020 11: AM| NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/05/2021 |FILED: NYSCEF ERIE DOC. NO. COUNTY 61 CLERK 03 /2 6 /2 0 21 0 2 : 40 % RECEIVED INDEX NO. 809591/2020 NYSCEF: 03/26/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE UTICA NATIONAL INSURANCE COMPANY OF OHIO AS SUBROGEE OF SPRINGVILLE- GRIFFlTH INSTITUTE CENTRAL SCHOOL DISTRICT, Mernorandum 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 Delta 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 Strornecki Engineers, P.C. 7 of 12 9 of 14 FILED: ERIE COUNTY CLERK 04/08/2021 04:46 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/08/2021 IFILED: ERIE COUNTY CLERK 04/05/2021 INDEX NO. 809591/2020 11:23 AMI NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/05/2021 INDEX NO. 809591/2020 IFILED: ERIE COUNTY CLERK 03/ XE/2021 02:40 PM) NYSCEF DOC. NO. 61 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. 5tatement of Facts In 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. Coñcept thereafter retained the remaining Defendants, Arric and Guard, as subcontractors to perform certain portions of the work. Guard hired Defendant 5tromecki Engi neers, 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 (hereimafter "Utica 2 8 of 12 10 of 14 FILED: ERIE COUNTY CLERK 04/08/2021 04:46 PM INDEX NO. 809591/2020 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/08/2021 ERIE COUNTY CLERK INDEX NO. 809591/2020 (FILED: 04/05/2021 11:23 AM) NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/05/2021 INDEX NO. 809591/2020 (FÏLED: ERIE COUNTY CLERK 03/26/2021 02 : 40 PMJ NYSCEF DOC, NO. 61 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