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

1175
CA 15-00440
PRESENT: SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


RICHARD P. JEANETTI, ET AL., PLAINTIFFS,

                    V                              MEMORANDUM AND ORDER

CASLER MASONRY, INC., BY AND THROUGH ITS AGENTS,
OFFICERS AND/OR EMPLOYEES, DEFENDANT.
------------------------------------------------
CASLER MASONRY, INC., BY AND THROUGH ITS AGENTS,
OFFICERS AND/OR EMPLOYEES, THIRD-PARTY
PLAINTIFF-RESPONDENT-APPELLANT,

                    V

BARR & BARR, INC., THIRD-PARTY
DEFENDANT-APPELLANT-RESPONDENT.


MARONEY & O’CONNOR LLP, NEW YORK CITY (JAMES P. O’CONNOR OF COUNSEL),
FOR THIRD-PARTY DEFENDANT-APPELLANT-RESPONDENT.

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


     Appeal and cross appeal from an order of the Supreme Court,
Cayuga County (Mark H. Fandrich, A.J.), entered May 12, 2014. The
order, among other things, granted in part and denied in part the
motion of third-party defendant for summary judgment dismissing the
third-party complaint and denied the cross motion of third-party
plaintiff for summary judgment in the third-party action.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in its entirety
and dismissing the third-party complaint and as modified the order is
affirmed without costs.

     Memorandum: Plaintiffs commenced this Labor Law and common-law
negligence action seeking damages for injuries sustained by Richard P.
Jeanetti (plaintiff) while participating in the rescue of an employee
of defendant-third-party plaintiff, Casler Masonry, Inc., by and
through its agents, officers and/or employees (Casler), at a
construction job site. At the time of plaintiff’s alleged injuries,
third-party defendant, Barr & Barr, Inc. (Barr), was engaged as
construction manager for the project pursuant to a contract with the
owner, Colgate University. Casler was performing masonry work on the
project under a subcontract with Barr. The subcontract included an
                                 -2-                          1175
                                                         CA 15-00440

additional Scaffolding Indemnity Agreement that, inter alia, permitted
Barr to use Casler’s scaffolding “for the purpose of performing
miscellaneous tasks during masonry operations” at the project.

     Casler’s employee was injured in the course of his employment
with Casler when a large concrete beam fell on him while he was
working on Casler scaffolding. Plaintiff was present at the work site
as a Barr employee, in his capacity as superintendent of labor.
Plaintiff, along with emergency responders, climbed the scaffolding to
assist in the rescue and transfer of Casler’s employee from the
scaffolding to the ground. Plaintiff allegedly injured his back in
the process.

     Plaintiffs’ complaint is founded upon the “danger invites rescue”
doctrine (see generally Provenzo v Sam, 23 NY2d 256, 260). After
interposing an answer to the complaint, Casler commenced a third-party
action against Barr, asserting causes of action for common-law
indemnification and contractual indemnification. The latter cause of
action was predicated upon provisions in the Scaffolding Indemnity
Agreement requiring Barr to defend and indemnify Casler for any claims
and expenses “arising out of or resulting from [Barr’s] use,
negligence, fault or omission in maintenance, handling, or operation
of the Scaffolding.” Barr moved for summary judgment dismissing the
third-party complaint, and Casler cross-moved for summary judgment on
the issue of contractual indemnification. Supreme Court granted
Barr’s motion with respect to common-law indemnification, and denied
the motion and cross motion with respect to contractual
indemnification. We conclude that the court should have granted
Barr’s motion in its entirety, and we therefore modify the order
accordingly.

     We agree with Barr that it owes no contractual duty to indemnify
Casler. Where, as here, “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). Moreover,
the language of an indemnity agreement “should not be extended to
include damages which are neither expressly within its terms nor of
such character that it is reasonable to infer that they were intended
to be covered under the contract” (Niagara Frontier Transp. Auth. v
Tri-Delta Constr. Corp., 107 AD2d 450, 453, affd 65 NY2d 1038; see
Zanghi v Laborers’ Intl. Union of N. Am., AFL-CIO, 21 AD3d 1370,
1372). Here, plaintiff was allegedly injured in a rescue operation of
Casler’s employee resulting from Casler’s masonry work. We conclude
that “no contractual duty to indemnify under such circumstances is
either expressly imposed [by] or reasonably to be inferred” from the
language of the Scaffolding Indemnity Agreement (Zanghi, 21 AD3d at
1373).

     In light of our determination, we do not address Barr’s remaining
contentions.
Entered: November 20, 2015                      Frances E. Cafarell
                                                Clerk of the Court
