         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1363
CA 12-00459
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


JANNETTE MORALES, PLAINTIFF,

                    V                             MEMORANDUM AND ORDER

ASARESE MATTERS COMMUNITY CENTER, ET AL.,
DEFENDANTS,
CITY OF BUFFALO PARKS AND RECREATION
DEPARTMENT, CITY OF BUFFALO,
DEFENDANTS-RESPONDENTS,
AND COUNTY OF ERIE, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


JAECKLE FLEISCHMANN & MUGEL, LLP, BUFFALO (BEVERLEY S. BRAUN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

HODGSON RUSS LLP, BUFFALO (HUGH M. RUSS, III, OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


      Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered January 9, 2012. The order, insofar as
appealed from, granted that part of the motion of defendants City of
Buffalo Parks and Recreation Department and City of Buffalo for
summary judgment dismissing the cross claims of defendant County of
Erie.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the motion of
defendants City of Buffalo Parks and Recreation Department and City of
Buffalo seeking summary judgment dismissing defendant County of Erie’s
cross claim for contractual indemnification and reinstating that cross
claim, and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained in a near-drowning incident at a pool owned by
defendant City of Buffalo (City), which was located in one of the
City’s parks. At the time of the incident, the City and defendant
County of Erie (County) were parties to an agreement pursuant to which
the County agreed to operate and manage the City’s parklands
(contract). The County asserted two cross claims in its answer,
including a cross claim for contractual indemnification against the
City based on an indemnification provision contained in the contract.
In appeal No. 1, the County appeals from an order insofar as it denied
that part of the County’s motion for summary judgment on the cross
claim for contractual indemnification. In appeal No. 2, as limited by
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                                                         CA 12-00459

its brief, the County appeals from an order insofar as it granted that
part of the motion of the City and defendant City of Buffalo Parks and
Recreation Department (City defendants) for summary judgment
dismissing the County’s cross claim for contractual indemnification.

     The County contends that Supreme Court erred in denying its
motion and granting the City defendants’ motion with respect to the
cross claim for contractual indemnification because the contract
unambiguously provides that the City is required to indemnify it
against any claims, including those based upon the County’s
negligence. In order to establish entitlement to summary judgment in
a case involving the interpretation of a contract, a party “has the
burden of establishing that the construction it favors is the only
construction which can fairly be placed thereon” (Arrow Communication
Labs. v Pico Prods., 206 AD2d 922, 923 [internal quotation marks
omitted]; see Kibler v Gillard Constr. Inc., 53 AD3d 1040, 1042). We
conclude that, in this case, both the County and the City failed to
establish that their own construction is the only reasonable
construction of the contract and that, instead, there is an ambiguity
whether the indemnification provision requires the City to indemnify
the County against claims based upon the County’s alleged acts of
negligence. Because the “ ‘determination of the intent of the parties
depends on the credibility of extrinsic evidence or on a choice among
reasonable inferences to be drawn from extrinsic evidence,’ the issue
is one of fact for the trier of fact and cannot be resolved as a
matter of law” (Brinson v Kulback’s & Assoc., 296 AD2d 850, 852,
quoting Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 172).
Thus, in appeal No. 1, we conclude that the court properly denied that
part of the County’s motion for summary judgment with respect to its
cross claim for contractual indemnification. In appeal No. 2,
however, we agree with the County that the court erred in granting
that part of the City defendants’ motion seeking summary judgment
dismissing the County’s cross claim for contractual indemnification,
and we therefore modify the order accordingly.

     The City defendants contend, as an alternative ground for
affirmance (see generally Parochial Bus Sys. v Board of Educ. of City
of N.Y., 60 NY2d 539, 545-546), that General Obligations Law § 5-322.1
(1) renders the indemnification provision unenforceable. We reject
that contention. General Obligations Law § 5-322.1 (1) is
inapplicable to this case inasmuch as the County’s agreement to staff
lifeguards at the pool is unrelated to “the construction, alteration,
repair or maintenance of a building, structure, appurtenances and
appliances” (id.; see generally Pierre v Crown Fire Protection Corp.,
240 AD2d 386, 387; Pieri v Forest City Enters., 238 AD2d 911, 912-
913). Moreover, “[i]n considering the legislative purpose behind
General Obligations Law § 5-322.1, it is apparent that the Legislature
did not intend to preclude agreements like the subject agreement made
between sophisticated business entities free to agree to any terms
they choose” (Westport Ins. Co. v Altertec Energy Conservation, LLC,
82 AD3d 1207, 1211; see generally Fisher v Biderman, 154 AD2d 155,
161-162, lv denied 76 NY2d 702).
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                                             CA 12-00459




Entered:   February 8, 2013         Frances E. Cafarell
                                    Clerk of the Court
