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CONTRACT FOR INTERIOR DECORATOR SERVICES AND THE PURCHASE OF FURNITURE AND ACCESSORIES WAS A SERVICE CONTRACT GOVERNED BY THE SIX-YEAR STATUTE OF LIMITATIONS, NOT A CONTRACT FOR THE PURCHASE OF GOODS GOVERNED BY THE FOUR-YEAR STATUTE OF LIMITATIONS.

The First Department, in a full-fledged opinion by Justice Acosta, reversing Supreme Court, in a case of first impression, determined a mixed contract for interior decoration services and the purchase of furniture and other goods is governed by the six-year statute of limitations for service contracts, not the four-year statute of limitations for contracts for the purchase of goods:

In this case, the contract was primarily for interior design services, and the provision of furniture and accessories was merely incidental. Thus, the six-year statute of limitations applies. This conclusion is supported by the fact that plaintiff is an expert in the field of interior design, and it is clear from the contract that Ms. Swenson hired her for that reason. The contract, which is on plaintiff’s interior design company’s letterhead, states that plaintiff will provide advice and design suggestions regarding construction, cabinetry, painting, and using the clients’ existing items. Plaintiff stated that she designed most of the rooms throughout defendants’ Tuxedo Park house, and the contract provides that she will select products and materials, show them to Ms. Swenson, and then purchase them on her behalf. In addition, the contract provides that defendants will be charged “List price,” which plaintiff states is understood in the industry to include both the cost of the materials as well as a percentage service fee. Moreover, the contract acknowledges that certain “custom work” will be done by “interior designers work people,” and a number of the invoices referenced such “custom made” items. Finally, plaintiff and Ms. Swenson also agreed that plaintiff could use and publish photographs of the items to show off plaintiff’s work, which demonstrates that plaintiff’s value is attributed to the selection of the various items and putting them together for a particular scheme, not merely to her acting as a retailer. Hagman v Swenson, 2017 NY Slip Op 01483, 1st Dept 2-23-17

CONTRACT LAW (CONTRACT FOR INTERIOR DECORATOR SERVICES AND THE PURCHASE OF FURNITURE AND ACCESSORIES WAS A SERVICE CONTRACT GOVERNED BY THE SIX-YEAR STATUTE OF LIMITATIONS, NOT A CONTRACT FOR THE PURCHASE OF GOODS GOVERNED BY THE FOUR-YEAR STATUTE OF LIMITATIONS)/CIVIL PROCEDURE (CONTRACT LAW, CONTRACT FOR INTERIOR DECORATOR SERVICES AND THE PURCHASE OF FURNITURE AND ACCESSORIES WAS A SERVICE CONTRACT GOVERNED BY THE SIX-YEAR STATUTE OF LIMITATIONS, NOT A CONTRACT FOR THE PURCHASE OF GOODS GOVERNED BY THE FOUR-YEAR STATUTE OF LIMITATIONS)/INTERIOR DECORATORS (CONTRACT FOR INTERIOR DECORATOR SERVICES AND THE PURCHASE OF FURNITURE AND ACCESSORIES WAS A SERVICE CONTRACT GOVERNED BY THE SIX-YEAR STATUTE OF LIMITATIONS, NOT A CONTRACT FOR THE PURCHASE OF GOODS GOVERNED BY THE FOUR-YEAR STATUTE OF LIMITATIONS)

POSSIBLE APPLICABILITY OF THE CONSCIOUS IGNORANCE DOCTRINE PRECLUDED SUMMARY JUDGMENT IN THIS MUTUAL MISTAKE ACTION.

The First Department, over an extensive dissent, determined a question of fact precluded summary judgment in this “mutual mistake” action. Plaintiff purchased two artifacts which were supposed to be ancient. Both were subsequently deemed by experts to be modern in origin. Plaintiff sought to rescind the purchase as having been based upon mutual mistake. There was evidence, however, that plaintiff was aware the defendant had sold “fake” artifacts in the past, raising an issue of fact about the applicability of the “conscious ignorance” exception the mutual mistake doctrine:

The doctrine of mutual mistake “may not be invoked by a party to avoid the consequences of its own negligence” … . Where a party “in the exercise of ordinary care, should have known or could easily have ascertained” the relevant fact … – here, whether the items were ancient – that party is deemed to have been “[c]onscious[ly] ignoran[t]” and barred from seeking rescission … or other damages. This is true “[e]ven where a party must go beyond its own efforts in order to ascertain relevant facts (such as obtaining experts’ reports)” … .

The conscious ignorance exception applies only where a party is aware that his knowledge is limited but decides to contract anyway “in the hope that the facts accord with his wishes,” thus assuming “[t]he risk of the existence of the doubtful fact . . . as one of the elements of the bargain” … .

We agree with the dissent that both plaintiff and defendants shared the mistaken belief that the Faustina Bust and the Etruscan Warrior were “ancient.” Where we diverge is that we find that the record at this time does not support a finding that [plaintiff] did not consciously ignore his uncertainty as to a crucial fact … . Jerome M. Eisenberg, Inc. v Hall, 2017 NY Slip Op 01437, 1st Dept 2-23-17

 

CONTRACT LAW (POSSIBLE APPLICABILITY OF THE CONSCIOUS IGNORANCE DOCTRINE PRECLUDED SUMMARY JUDGMENT IN THIS MUTUAL MISTAKE ACTION)/MUTUAL MISTAKE (CONTRACT LAW, POSSIBLE APPLICABILITY OF THE CONSCIOUS IGNORANCE DOCTRINE PRECLUDED SUMMARY JUDGMENT IN THIS MUTUAL MISTAKE ACTION)/CONSCIOUS IGNORANCE DOCTRINE (CONTRACT LAW, MUTUAL MISTAKE, POSSIBLE APPLICABILITY OF THE CONSCIOUS IGNORANCE DOCTRINE PRECLUDED SUMMARY JUDGMENT IN THIS MUTUAL MISTAKE ACTION)/RESCISSION (CONTRACT LAW, MUTUAL MISTAKE, POSSIBLE APPLICABILITY OF THE CONSCIOUS IGNORANCE DOCTRINE PRECLUDED SUMMARY JUDGMENT IN THIS MUTUAL MISTAKE ACTION)

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PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE.

The Second Department determined Supreme Court properly excluded a purported copy of a guaranty from evidence and properly dismissed the complaint which sought enforcement of the guaranty. The purported original guaranty was incomplete and was withdrawn as evidence:

Supreme Court properly determined that the proffered copy of the guaranty was inadmissible as secondary evidence of the terms of the guaranty or pursuant to CPLR 4539(a). Under an exception to the best evidence rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith” … . Once the absence of an original document is excused, all competent secondary evidence is generally admissible to prove its contents … . However, the proponent of the secondary evidence has a “heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original” … . “Thus, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original’ before ruling on its admissibility” … .

Here, even if the plaintiff sufficiently explained the unavailability of the original guaranty … , it failed to meet its heavy burden of establishing that the proffered copy was a reliable and accurate portrayal of the original … . The plaintiff’s principal was not present when the original guaranty was executed, and thus could not testify as to whether the original guaranty was similarly missing a portion of paragraph 4, while Gluck testified that the guaranty she executed contained complete paragraphs. Further, the copy was not satisfactorily identified as a copy of the guaranty so as to be admissible as a reproduction pursuant to CPLR 4539(a) … . 76-82 St. Marks, LLC v Gluck, 2017 NY Slip Op 01329, 2nd Dept 2-22-17

 

CONTRACT LAW (PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE)/GUARANTY (EVIDENCE, PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE)/EVIDENCE (PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE)

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ALTHOUGH THE INSURANCE POLICY EXCLUDED WATER DAMAGE AND THE INSURED PROPERTY WAS FLOODED DURING HURRICANE SANDY, THE INSURER’S EXPERT’S AFFIDAVIT DID NOT REFUTE THE ALLEGATION THE INSURED PROPERTY WAS DAMAGED BY AN ELECTRICAL SHORT A MONTH AFTER THE STORM WHEN ELECTRICITY WAS RESTORED.

The First Department determined the insurer’s (National Specialty’s) motion for summary judgment dismissing the complaint was properly denied. The insurance policy excluded water-related damage. There was no question that the building housing plaintiff’s (Pastabar’s) refrigeration equipment was flooded during Hurricane Sandy. However, plaintiff alleged damage to the refrigeration equipment was caused by an electrical short when the electricity was turned on a month after the storm. The affidavit from the insurer’s expert did not refute plaintiff’s allegation:

In compliance with its obligations under its lease, Pastabar had bought a commercial package policy containing commercial general liability and property damage coverage from defendant National Specialty. * * *

National Specialty failed to establish prima facie that all of Pastabar’s claimed losses were caused by flood waters resulting from Hurricane Sandy … , and were thus within the insurance policy exclusion for water and floods. Based on photographs that Pastabar received from an unidentified neighbor, National Specialty’s expert made a finding concerning the exterior water level at the premises … . However, the expert never inspected the site or the electrical wiring. Therefore, the expert could not refute testimony by Pastabar’s manager that Pastabar suffered additional damage a month after the storm, when electricity was restored and caused “the melting of wires and burning of . . . most of the equipment.” Thus, the expert’s report never rose above the level of speculation … . Pastabar Café Corp. v 343 E. 8th St. Assoc., LLC, 2017 NY Slip Op 01305, 1st Dept 2-21-17

 

INSURANCE LAW (ALTHOUGH THE INSURANCE POLICY EXCLUDED WATER DAMAGE AND THE INSURED PROPERTY WAS FLOODED DURING HURRICANE SANDY, THE INSURER’S EXPERT’S AFFIDAVIT DID NOT REFUTE THE ALLEGATION THE INSURED PROPERTY WAS DAMAGED BY AN ELECTRICAL SHORT A MONTH AFTER THE STORM WHEN ELECTRICITY WAS RESTORED)/CONTRACT LAW (INSURANCE, ALTHOUGH THE INSURANCE POLICY EXCLUDED WATER DAMAGE AND THE INSURED PROPERTY WAS FLOODED DURING HURRICANE SANDY, THE INSURER’S EXPERT’S AFFIDAVIT DID NOT REFUTE THE ALLEGATION THE INSURED PROPERTY WAS DAMAGED BY AN ELECTRICAL SHORT A MONTH AFTER THE STORM WHEN ELECTRICITY WAS RESTORED)/HURRICANE SANDY (INSURANCE LAW, ALTHOUGH THE INSURANCE POLICY EXCLUDED WATER DAMAGE AND THE INSURED PROPERTY WAS FLOODED DURING HURRICANE SANDY, THE INSURER’S EXPERT’S AFFIDAVIT DID NOT REFUTE THE ALLEGATION THE INSURED PROPERTY WAS DAMAGED BY AN ELECTRICAL SHORT A MONTH AFTER THE STORM WHEN ELECTRICITY WAS RESTORED)

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HUGE CONSTRUCTION CRANE DESTROYED IN SUPERSTORM SANDY NOT COVERED BY INSURANCE, CONTRACTOR’S TOOLS EXCLUSION APPLIED.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined a huge construction crane destroyed during Superstorm Sandy was subject to the “contractor’s tools exclusion” in the applicable policy:

… [W]e conclude that there is no coverage for that loss under the policy because any coverage afforded by that contract in the first instance is defeated by the contractor’s tools exclusion. That exclusion provides that “[t]h[e] Policy does not insure against loss or damage to . . . Contractor’s tools, machinery, plant and equipment including spare parts and accessories, whether owned, loaned, borrowed, hired or leased, and property of a similar nature not destined to become a permanent part of the INSURED PROJECT*, unless specifically endorsed to the Policy.”

“‘[B]efore an insurance company is permitted to avoid policy coverage, it must satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case, and that they are subject to no other reasonable interpretation'” . [Plaintiff] Extell, in particular, contends that defendants cannot have met that burden here because the crane is not a “tool” or “equipment” within the meaning of the contractor’s tools exclusion. The subject exclusion, however, also defeats coverage for “machinery,” and the crane falls squarely within this definition of that term. “Machinery” means, among other things, “machines in general or as a functioning unit,” and “machine” is defined as “a mechanically, electrically, or electronically operated device for performing a task” … . Lend Lease (US) Constr. LMB Inc. v Zurich Am. Ins. Co., 2017 NY Slip Op 01141, CtApp 2-14-17

INSURANCE LAW (HUGE CONSTRUCTION CRANE DESTROYED IN SUPERSTORM SANDY NOT COVERED BY INSURANCE, CONTRACTOR’S TOOLS EXCLUSION APPLIED)/CONTRACT LAW (INSURANCE LAW, HUGE CONSTRUCTION CRANE DESTROYED IN SUPERSTORM SANDY NOT COVERED BY INSURANCE, CONTRACTOR’S TOOLS EXCLUSION APPLIED)/CRANES (INSURANCE LAW, (HUGE CONSTRUCTION CRANE DESTROYED IN SUPERSTORM SANDY NOT COVERED BY INSURANCE, CONTRACTOR’S TOOLS EXCLUSION APPLIED)/EXCLUSIONS (INSURANCE LAW, HUGE CONSTRUCTION CRANE DESTROYED IN SUPERSTORM SANDY NOT COVERED BY INSURANCE, CONTRACTOR’S TOOLS EXCLUSION APPLIED)

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UNAMBIGUOUS TERM OF INSURANCE CONTRACT CAPPING PAYMENT FOR WATER DAMAGE SHOULD HAVE BEEN ENFORCED.

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the terms of the insurance policy were not ambiguous and the $25,000 cap for water damage applied:

It is well-settled that insurance contracts are construed “in light of common speech’ and the reasonable expectations of a businessperson” … . “[U]nambiguous provisions of an insurance contract must be given their plain and ordinary meaning” … . We conclude that the contract language at issue here is not ambiguous. By its plain terms, the contract limits coverage to $25,000 for damage caused when ground water enters the basement through a gap, hole, or opening in the wall, and the conduit clearly falls within the water damage exclusion and endorsement … . Papa v Associated Indem. Corp., 2017 NY Slip Op 01118, 4th Dept 2-10-17

INSURANCE LAW (UNAMBIGUOUS TERM OF INSURANCE CONTRACT CAPPING PAYMENT FOR WATER DAMAGE SHOULD HAVE BEEN ENFORCED)/CONTRACT LAW (iNSURANCE LAW, UNAMBIGUOUS TERM OF INSURANCE CONTRACT CAPPING PAYMENT FOR WATER DAMAGE SHOULD HAVE BEEN ENFORCED)

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A SOPHISTICATED PARTY’S REQUEST FOR AND RECEIPT OF WRITTEN ASSURANCES FROM DEFENDANT WAS A VALID SUBSTITUTE FOR A DUE DILIGENCE INQUIRY, SUPREME COURT’S DISMISSAL OF FRAUD ACTION REVERSED.

The First Department, reversing Supreme Court, determined the motion to dismiss the complaint alleging fraud should not have been granted, and the motion to amend the complaint to allege negligent misrepresentation should have been granted. Supreme Court ruled that plaintiff was a sophisticated lender and made the loan without performing due diligence (and therefore could not allege justifiable reliance on any misrepresentations). The First Department held that plaintiff’s request for and receipt of written assurances was sufficient due diligence:

A sophisticated party is generally required to exercise due diligence to verify the facts represented to it before entering into a business transaction … . The Court of Appeals has recognized, however, that, “where a plaintiff has gone to the trouble to insist on a written representation that certain facts are true, it will often be justified in accepting that representation rather than making its own inquiry” … . In this case, plaintiff alleges that it made the loan … in reliance on [defendant] Noto’s opinion letter, which was specifically addressed to plaintiff, in which Noto opined that the loan transaction would not put [any party] into breach of any preexisting contract or agreement … . Plaintiff alleges that this representation was false, inasmuch as the undisclosed 2005 letter agreement required [maintenance of] a $2 million cushion of “unencumbered equity” in the property in any refinancing, and — given that the true value of the property was only $1.9 million, based on the terms of the undisclosed 2005 transaction — plaintiff’s $6.6 million loan … wiped out any such equity in the property. Remediation Capital Funding LLC v Noto, 2017 NY Slip Op 01119, 1st Dept 2-10-17

CONTRACT LAW (A SOPHISTICATED PARTY’S REQUEST FOR AND RECEIPT OF WRITTEN ASSURANCES FROM DEFENDANT WAS A VALID SUBSTITUTE FOR A DUE DILIGENCE INQUIRY, SUPREME COURT’S DISMISSAL OF FRAUD ACTION REVERSED)/FRAUD (A SOPHISTICATED PARTY’S REQUEST FOR AND RECEIPT OF WRITTEN ASSURANCES FROM DEFENDANT WAS A VALID SUBSTITUTE FOR A DUE DILIGENCE INQUIRY, SUPREME COURT’S DISMISSAL OF FRAUD ACTION REVERSED)/MISREPRESENTATION (A SOPHISTICATED PARTY’S REQUEST FOR AND RECEIPT OF WRITTEN ASSURANCES FROM DEFENDANT WAS A VALID SUBSTITUTE FOR A DUE DILIGENCE INQUIRY, SUPREME COURT’S DISMISSAL OF FRAUD ACTION REVERSED).SOPHISTICATED PARTY (A SOPHISTICATED PARTY’S REQUEST FOR AND RECEIPT OF WRITTEN ASSURANCES FROM DEFENDANT WAS A VALID SUBSTITUTE FOR A DUE DILIGENCE INQUIRY, SUPREME COURT’S DISMISSAL OF FRAUD ACTION REVERSED)/DUE DILIGENCE (A SOPHISTICATED PARTY’S REQUEST FOR AND RECEIPT OF WRITTEN ASSURANCES FROM DEFENDANT WAS A VALID SUBSTITUTE FOR A DUE DILIGENCE INQUIRY, SUPREME COURT’S DISMISSAL OF FRAUD ACTION REVERSED)

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DISCLAIMER IN SUBCONTRACT IS AMBIGUOUS, MOTION TO DISMISS FRAUD COUNTERCLAIM BASED UPON THE DISCLAIMER SHOULD NOT HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether a disclaimer in a subcontract precluded the fraud counterclaim. The court further determined the fraud counterclaim was not duplicative of the breach of contract counterclaim and the fraud counterclaim was pled with sufficient specificity. Plaintiff, Pike, did concrete and steel construction work. Defendant subcontractor, Jersen, was hired to do masonry work:

The fraud counterclaim is the sole focus of this appeal. In that counterclaim, Jersen alleged that, before it began work on the project, Pike was informed by at least one of its other subcontractors that its substrate work was not “accurate, flat or level,” i.e., was deficient. Nevertheless, Pike represented to Jersen that the substrate work “had been erected in accordance with the contract requirements and was plumb, level, and true and that [Pike] had performed a professional survey of the structural steel to confirm the same.” Jersen alleged that Pike’s representations to Jersen “were false,” and that Pike “concealed and recklessly withheld from Jersen knowledge that the substrate was not dimensionally accurate, flat or level.” Additionally, Jersen alleged that Pike made those false representations “in order to deceive Jersen and induce Jersen to commence installation upon the substrate.” Jersen further alleged that it relied on Pike’s representations and would not have commenced installation of the masonry work had Pike not misrepresented to Jersen that the substrate had been installed in accordance with the contract requirements. According to Jersen, it suffered damages as a result of its reliance on Pike’s false representations. * * *

We conclude that the subcontract is ambiguous whether the disclaimer clause in section 1.8 precludes Jersen from relying on any opinions or representations concerning work performed by others after Jersen executed the subcontract, and thus that section 1.8 does not “conclusively establish[ ] a defense” to the counterclaim for fraud … . Pike Co., Inc. v Jersen Constr. Group, LLC, 2017 NY Slip Op 01116, 4th Dept 2-10-17

CONTRACT LAW (DISCLAIMER IN SUBCONTRACT IS AMBIGUOUS, MOTION TO DISMISS FRAUD COUNTERCLAIM BASED UPON THE DISCLAIMER SHOULD NOT HAVE BEEN GRANTED)/FRAUD (DISCLAIMER IN SUBCONTRACT IS AMBIGUOUS, MOTION TO DISMISS FRAUD COUNTERCLAIM BASED UPON THE DISCLAIMER SHOULD NOT HAVE BEEN GRANTED)/DISCLAIMER (CONTRACT LAW, FRAUD, DISCLAIMER IN SUBCONTRACT IS AMBIGUOUS, MOTION TO DISMISS FRAUD COUNTERCLAIM BASED UPON THE DISCLAIMER SHOULD NOT HAVE BEEN GRANTED)

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ETHICAL VIOLATION CANNOT BE USED AS A SWORD TO AVOID PAYMENT OF ATTORNEY’S FEE; BECAUSE TRIAL PREPARATION NOT NECESSARY, LOWER ATTORNEY’S-FEE PERCENTAGE APPLIED.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined the fee arrangement contracts between plaintiff's attorney, Menkes, and two attorneys Menkes contracted with for assistance, Manheimer and Golomb, should be enforced according to standard prinicples of contract interpretation. Menkes argued that Manheimer was not entitled to payment because the clients were never informed (by Menkes) of Manheimer's involvement (an ethical violation). Golomb argued he was entitled to 40% of the fees because the matter did not settle at the mediation session. The Court of Appeals determined the 40% term only applied if it became necessary to prepare for trial (the case settled before trial preparation):

Menkes's attempt to use the ethical rules as a sword to render unenforceable, as between the two attorneys, the agreements with Manheimer that she herself drafted is unavailing. Her failure to inform her clients of Manheimer's retention, while a serious ethical violation, does not allow her to avoid otherwise enforceable contracts under the circumstances of this case … . * * *

Here, the mediator and Golomb communicated in the days following the May 20 mediation session, with the mediator continuing to act as go-between. Ten days after the session, the mediator communicated the final $8 million offer, which Golomb accepted. Reading the agreement as a whole, the plain language of the agreement entitles Golomb to 12% of net attorneys' fees. Marin v Constitution Realty, LLC, 2017 NY Slip Op 01019, CtApp 2-9-17

ATTORNEYS (FEES, ETHICAL VIOLATION CANNOT BE USED AS A SWORD TO AVOID PAYMENT OF ATTORNEY'S FEE, BECAUSE TRIAL PREPARATION NOT NECESSARY, LOWER ATTORNEY'S-FEE PERCENTAGE APPLIED)/CONTRACT LAW (ATTORNEY'S FEES, ETHICAL VIOLATION CANNOT BE USED AS A SWORD TO AVOID PAYMENT OF ATTORNEY'S FEE, BECAUSE TRIAL PREPARATION NOT NECESSARY, LOWER ATTORNEY'S-FEE PERCENTAGE APPLIED)

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CLAIM; QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY.

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff, who was not wearing a harness, had fallen through a skylight. The anchor points for harnesses had not yet been installed. The employer’s motion for summary judgment dismissing the property owner’s third-party complaint seeking indemnification was, however, properly denied. The Workers’ Compensation Law allows suit only when the injury is grave (not so here) or where there is a written indemnification agreement. Here there was an indemnification agreement entered after the accident. There was a question of fact whether the agreement was intended to be effective retroactively:

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that he was not provided with necessary protection from the gravity-related risk of his work and that the absence of the necessary protection was a proximate cause of his injuries … .

… An employer may be held liable for contribution or indemnification only when its employee has sustained a grave injury as defined by the Workers’ Compensation Law or when 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 claimant” … . The Workers’ Compensation Law does not bar indemnification or contribution pursuant to a written agreement that was entered into after the employee’s injury and which the parties agree will have retroactive effect … . “[I]ndemnity contracts are to be strictly construed to avoid reading into them duties which the parties did not intend to be assumed” … . Therefore, an indemnity contract will not be held to have retroactive effect “unless by its express words or necessary implication it clearly appears to be the parties’ intention to include past obligations” … . Cacanoski v 35 Cedar Place Assoc., LLC, 2017 NY Slip Op 00956, 2nd Dept 2-8-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CLAIM, QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY)/WORKERS’ COMPENSATION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CLAIM, QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY)/CONTRACT LAW (WORKERS’ COMPENSATION LAW, INDEMNIFICATION AGREEMENT, QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY)

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