Vick v. American Re-Fuel Co. of Niagara

Appellate Division of the Supreme Court of New York

Vick v. American Re-Fuel Co. of Niagara

283 A.D.2d 915, 723 N.Y.S.2d 781, 2001 N.Y. App. Div. LEXIS 4509

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

DecidedMay 2, 2001

StatusPublished

Cited by2 cases

This text of 283 A.D.2d 915 (Vick v. American Re-Fuel Co. of Niagara) 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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Vick v. American Re-Fuel Co. of Niagara, 283 A.D.2d 915, 723 N.Y.S.2d 781, 2001 N.Y. App. Div. LEXIS 4509 (N.Y. Ct. App. 2001).

Pincite

Opinion

Memorandum: Plaintiffs commenced this action to recover for personal injuries sustained by plaintiff Gerald P. Vick, Sr. in a slip and fall on ice in a parking area at a construction site owned by defendant-third-party plaintiff, American Ref-Fuel Company of Niagara, incorrectly sued as American Re-Fuel Company of Niagara (American). Of the various claims initially alleged by plaintiffs, only the claims alleging common-law negligence and the violation of Labor Law § 200 survive. In its third-party action against the construction contractor, third-party defendant, Stritt & Priebe, Inc. (Stritt), American seeks indemnification based upon provisions in the construction contract requiring Stritt to indemnify American and procure insurance coverage for it. Supreme Court erred in denying the motion of Stritt to dismiss the third-party complaint and in granting the cross [916]*916motion of American for summary judgment on liability on the third-party complaint. The record establishes as a matter of law that Stritt fulfilled its contractual obligation to procure a liability policy on which American was named as an additional insured. American’s reliance on Zito v Occidental Chem. Corp. (259 AD2d 1015, 1015-1016, lv dismissed 93 NY2d 999) is misplaced because the issue in that case was whether the insurance policy procured by the contractor included coverage for the owner’s negligence (see generally, Kinney v Lisk Co., 76 NY2d 215, 218-219). Further, the indemnification provision of the contract is unenforceable as a matter of law pursuant to General Obligations Law § 5-322.1. Because the only surviving claims in the primary action allege American’s negligence or violation of Labor Law § 200, the inevitable illegal effect of the indemnification provision would be to require Stritt to indemnify American for its own negligence (see, Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 793-794, rearg denied 90 NY2d 1008; cf., Brown v Two Exch. Plaza Partners, 76 NY2d 172, 179-181). (Appeal from Order of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.) Present— Pigott, Jr., P. J., Green, Wisner, Kehoe and Burns, JJ.

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Memorandum: Plaintiffs commenced this action to recover for personal injuries sustained by plaintiff Gerald P. Vick, Sr. in a slip and fall on ice in a parking area at a construction site owned by defendant-third-party plaintiff, American Ref-Fuel Company of Niagara, incorrectly sued as American Re-Fuel Company of Niagara (American). Of the various claims initially alleged by plaintiffs, only the claims alleging common-law negligence and the violation of Labor Law § 200 survive. In its third-party action against the construction contractor, third-party defendant, Stritt & Priebe, Inc. (Stritt), American seeks indemnification based upon provisions in the construction contract requiring Stritt to indemnify American and procure insurance coverage for it. Supreme Court erred in denying the motion of Stritt to dismiss the third-party complaint and in granting the cross [916]*916motion of American for summary judgment on liability on the third-party complaint. The record establishes as a matter of law that Stritt fulfilled its contractual obligation to procure a liability policy on which American was named as an additional insured. American’s reliance on Zito v Occidental Chem. Corp. (259 AD2d 1015, 1015-1016, lv dismissed 93 NY2d 999) is misplaced because the issue in that case was whether the insurance policy procured by the contractor included coverage for the owner’s negligence (see generally, Kinney v Lisk Co., 76 NY2d 215, 218-219). Further, the indemnification provision of the contract is unenforceable as a matter of law pursuant to General Obligations Law § 5-322.1. Because the only surviving claims in the primary action allege American’s negligence or violation of Labor Law § 200, the inevitable illegal effect of the indemnification provision would be to require Stritt to indemnify American for its own negligence (see, Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 793-794, rearg denied 90 NY2d 1008; cf., Brown v Two Exch. Plaza Partners, 76 NY2d 172, 179-181). (Appeal from Order of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.) Present— Pigott, Jr., P. J., Green, Wisner, Kehoe and Burns, JJ.

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283 A.D.2d 915, 723 N.Y.S.2d 781, 2001 N.Y. App. Div. LEXIS 4509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vick-v-american-re-fuel-co-of-niagara-nyappdiv-2001.

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