Juarez v. Rye Depot Plaza, LLC

Appellate Division of the Supreme Court of New York

Juarez v. Rye Depot Plaza, LLC

140 A.D.3d 464, 31 N.Y.S.3d 875

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 7, 2016

Docket1410 303069/09

StatusPublished

Cited by5 cases

This text of 140 A.D.3d 464 (Juarez v. Rye Depot Plaza, LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Juarez v. Rye Depot Plaza, LLC, 140 A.D.3d 464, 31 N.Y.S.3d 875 (N.Y. Ct. App. 2016).

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Opinion

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered April 1, 2015, which denied defendants/third-party plaintiffs’ (Rye and Imajan) motion for summary judgment on their contractual indemnification claim against third-party defendant (GFX), unanimously affirmed, with costs.

Rye and Imajan failed to establish prima facie either that GFX executed the indemnification agreement before plaintiff’s accident or that the agreement was intended to be retroactive (see Mikulski v Adam R. West, Inc., 78 AD3d 910 [2d Dept 2010]). Neither Rye’s principal nor GFX’s principal recalled when the undated agreement was signed. Nor does the conclusory affidavit by the controller of Imajan’s manager establish the date on which the agreement was signed. As to retroactivity, the agreement contains no “express words or necessary implication [by which] it clearly appears to be the parties’ intention to include past obligations” (see Mikulski, 78 AD3d at 911 [internal quotation marks omitted]).

Concur— Friedman, J.P., Renwick, Andrias, Gische and Webber, JJ.

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Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered April 1, 2015, which denied defendants/third-party plaintiffs’ (Rye and Imajan) motion for summary judgment on their contractual indemnification claim against third-party defendant (GFX), unanimously affirmed, with costs.

Rye and Imajan failed to establish prima facie either that GFX executed the indemnification agreement before plaintiff’s accident or that the agreement was intended to be retroactive (see Mikulski v Adam R. West, Inc., 78 AD3d 910 [2d Dept 2010]). Neither Rye’s principal nor GFX’s principal recalled when the undated agreement was signed. Nor does the conclusory affidavit by the controller of Imajan’s manager establish the date on which the agreement was signed. As to retroactivity, the agreement contains no “express words or necessary implication [by which] it clearly appears to be the parties’ intention to include past obligations” (see Mikulski, 78 AD3d at 911 [internal quotation marks omitted]).

Concur— Friedman, J.P., Renwick, Andrias, Gische and Webber, JJ.

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Bluebook (online)

140 A.D.3d 464, 31 N.Y.S.3d 875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/juarez-v-rye-depot-plaza-llc-nyappdiv-2016.

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