        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

634
CA 12-01577
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


GRANT MEABON, PLAINTIFF,

                    V                             MEMORANDUM AND ORDER

TOWN OF POLAND, DEFENDANT.
-----------------------------------
TOWN OF POLAND, THIRD-PARTY
PLAINTIFF-RESPONDENT,

                    V

SHERWOOD A. CHAPMAN, DOING BUSINESS
AS CADILLAC CARPENTRY, THIRD-PARTY
DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


KENNEY SHELTON LIPTAK & NOWAK, LLP, BUFFALO (MELISSA A. FOTI OF
COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT.

BENDER & BENDER, LLP, BUFFALO (THOMAS W. BENDER OF COUNSEL), FOR
THIRD-PARTY PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Chautauqua County
(James H. Dillon, J.), entered May 14, 2012. The order, insofar as
appealed from, granted that part of the motion of third-party
plaintiff for partial summary judgment on the first cause of action in
the third-party complaint and denied the cross motion of third-party
defendant for summary judgment.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion of
defendant-third-party plaintiff insofar as it sought partial summary
judgment on the first cause of action in the third-party complaint is
denied and the cross motion of third-party defendant for summary
judgment dismissing the third-party complaint is granted.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries that he allegedly
sustained while constructing a pole barn for defendant-third-party
plaintiff, Town of Poland (Town). Plaintiff, an employee of third-
party defendant, Sherwood A. Chapman, doing business as Cadillac
Carpentry (Cadillac), was injured when he slipped and fell from the
roof of the structure. In appeal No. 1, Cadillac, as limited by its
brief, appeals from an order granting that part of the Town’s motion
                                 -2-                           634
                                                         CA 12-01577

for partial summary judgment on the first cause of action in the
third-party complaint, for contractual indemnification from Cadillac,
and denying its cross motion for summary judgment dismissing the
third-party complaint. In appeal No. 2, Cadillac appeals from an
order denying its motion for leave to renew its cross motion pursuant
to CPLR 2221.

     We agree with Cadillac that Supreme Court erred in granting that
part of the Town’s motion with respect to contractual indemnification
from Cadillac, and in denying its cross motion for summary judgment
dismissing the third-party complaint. “Workers’ Compensation Law § 11
prohibits a third-party action against an employer unless the
plaintiff sustained a grave injury or there is ‘a written contract
entered into prior to the accident or occurrence by which the employer
had expressly agreed to contribution or indemnification of the [third-
party plaintiff]’ ” (Rodriguez v Seven Seventeen HB Buffalo Corp., 56
AD3d 1280, 1281, quoting Flores v Lower E. Side Serv. Ctr., Inc., 4
NY3d 363, 367, rearg denied 5 NY3d 746; see also Johnson v UniFirst
Corp., 67 AD3d 1442, 1443). The Town concedes that plaintiff did not
suffer a “grave injury,” and that it is entitled to indemnification
only if it can demonstrate the existence of a written contract.

     “When a party is under no legal duty to indemnify, a contract
assuming that obligation must be strictly construed to avoid reading
into it a duty which the parties did not intend to be assumed” (Hooper
Assoc. v AGS Computers, 74 NY2d 487, 491). We note, however, that “a
clause in a [contract] executed after a plaintiff’s accident may
nevertheless be applied retroactively where evidence establishes as a
matter of law that the agreement pertaining to the contractor’s work
was made as of [a pre-accident date], and that the parties intended
that it apply as of that date” (Nephew v Klewin Bldg. Co., Inc., 21
AD3d 1419, 1421-1422). Here, Cadillac met its initial burden on its
cross motion by establishing as a matter of law that, although there
was a contract between the parties, it was executed nearly a week
after plaintiff’s accident. Although the contract is not dated, i.e.,
the parties left blank a space to be filled in with the date on which
the contract was “made,” we conclude that other language in the
contract makes clear that it became effective on the date on which the
parties entered into the contract. Thus, Cadillac established that
the parties did not intend that the contract be applied retroactively
(cf. Pena v Chateau Woodmere Corp., 304 AD2d 442, 444, appeal
dismissed 2 AD3d 1488), and the Town failed to raise a triable issue
of fact whether the contract should be applied retroactively to the
time of plaintiff’s accident (see generally Zuckerman v City of New
York, 49 NY2d 557, 562).

     We also agree with Cadillac that the Town failed to meet its
initial burden on its motion, or to raise a triable issue of fact in
response to Cadillac’s cross motion, whether a “course of conduct”
between the parties gave rise to a contract for indemnification.
Although the Town initially argued such “course of conduct” based on
the fact that Cadillac was to provide it with a certificate of
insurance or to name it as an insured on an insurance policy (cf.
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                                                         CA 12-01577

Kinney v Lisk Co., 76 NY2d 215, 218; Rodriguez, 56 AD3d at 1281), the
Town has conceded on appeal that Cadillac was not required to provide
it with insurance coverage.

     Furthermore, inasmuch as the Town’s concession constitutes an
abandonment of its remaining cause of action in the third-party
complaint, we conclude that the court erred in denying Cadillac’s
cross motion for summary judgment dismissing the third-party
complaint. In light of our determination, we dismiss as moot the
appeal from the order in appeal No. 2 concerning Cadillac’s motion for
leave to renew its cross motion (see generally Elinski v Niagara Falls
Coach Lines, Inc., 101 AD3d 1722, 1723).




Entered:   July 19, 2013                       Frances E. Cafarell
                                               Clerk of the Court
