Corral et al v. The Outer Marker LLC et al
Filing
219
ORDER: SO ORDERED that Jackson's 193 motion for summary judgment is granted, and Jackson's 188 and 205 motions in limine are denied as moot. Ordered by Judge Sandra J. Feuerstein on 1/24/2012. (Florio, Lisa)
D(F
FILED
IN CLERK'S OFFICE
U S DISTRICT COURTED N y
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RODOLFO URENA CORRAL and
MARIA URENA,
*
JAN 2 4 2012
*
LONG ISLAND OFFICE
Plaintiffs,
-against-
ORDER
10-CV-1162 (SJF) (ARL)
THE OUTER MARKER LLC,
GLOBAL STEEL, INC.,
THE COUNTY OF SUFFOLK,
JAMIN JACKSON d/b/a JACKSON STEEL,
CESAR PINEDA d/b/a HORIZON ERECTORS, and
PARK LINE ASPHALT MAINTENANCE INC.,
Defendants.
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FEUERSTEIN, J.
By order dated September 20, 2011, the Court granted summary judgment to defendants
Park Line Asphalt Maintenance, Inc. ("Park Line"), the Outer Marker LLC ("the Outer Marker")
(together, "the Outer Marker defendants"), and the County of Suffolk. [Docket Entry No. 172].
Plaintiffs subsequently discontinued the action with respect to defendant Jamin Jackson d/b/a
Jackson Steel ("Jackson"). [Docket Entry No. 184].
The Outer Marker defendants have asserted cross-claims against Jackson, seeking
indemnification for the attorneys' fees they have incurred in connection with defending this
action. [Docket Entry No. 20]. Presently before the Court are: (I) Jackson's motion for
summary judgment with respect to the Outer Marker defendants' indemnification cross-claims
[Docket Entry No. 193]; and (2) Jackson's motions in limine to preclude the introduction of
I
certain evidence and testimony at trial [Docket Entry Nos. 188, 205]. For the reasons that follow
'
Jackson's motion for summary judgment is granted, and Jackson's motions in limine are denied
as moot.
I.
Jackson's Motion for Summary Judgment.
A.
Background
Plaintiff Rodolfo Urena Corral was a member of a construction crew building large metal
frame airplane hangars at the Francis S. Grabeski Airport in Westhampton Beach, New York.
Plaintiff alleges that he was injured at the worksite on November 28, 2009, while using defective
equipment. The factual background and procedural history of this case are discussed in the
Court's orders dated September I, 2011 and September 20, 2011. [Docket Entry Nos. 144, 172].
Park Line was the general contractor for the construction project, and the Outer Marker
was created for the purpose of leasing the land and constructing the airplane hangars. Both
entities are owned by Richard Mailand and Robert Mailand. Richard Mailand hired Jackson to
erect the two hangars; Jackson subcontracted another party to perform the labor.
On August 28, 2009, Richard Mailand, as "Owner," executed a written contract outlining
the terms of the agreement with Jackson. Jackson Ex. Q [Docket Entry No. 193-18] (the
"Hangar Contract"). Pursuant to the Hangar Contract, Jackson was to erect two (2) buildings
over the course of eight (8) to ten (I 0) weeks. !d. at p. I. The Hangar Contract did not provide
for the indemnification of either party, see id., although it stated: "Erector [i.e., Jackson] will
supply workers [sic] compensation and general liability insurance to cover Erector's employees."
2
!d.
at~
13.
On January 12, 2010, more than one (I) month after the November 28, 2009 accident
occurred, Jackson signed a contract dated "October I, 2009" and titled "Blanket Insurance/Hold
Harmless Indemnity Agreement." See Jackson Ex. S [Docket Entry No. 193-20] (the "Indemnity
Agreement"). The Indemnity Agreement states, in pertinent part:
"Please note that all contracts, purchase orders, or proceed orders issued to you
from this date forward are deemed to include the following insurance
requirements and indemnifications: ... [t]o the fullest extent permitted by Jaw the
Subcontractor agrees to indemnify, defend and hold harmless The Outer Marker
LLC ... from any and all claims, suits, damages, liabilities, professional fees,
including attorney's fees, costs court costs [sic], expenses and disbursements
related to ... personal injuries ... arising out of or in connection with or as a
consequence of the performance of the Work of the Subcontractor under this
agreement .... "
!d. (emphasis added).
The Outer Marker defendants argue that this contract requires Jackson to indemnifY them
for the attorneys' fees they have incurred in defending this action. Brief in Opposition to
Summary Judgment [Docket Entry No. 195] ("Opp.") at I. Jackson argues that he only agreed to
indemnify The Outer Marker with respect to future agreements, not with respect to the earlier
August 28, 2009 Hangar Contract.' Memorandum in Support of Summary Judgment [Docket
Entry No. 193-25] ("Jackson Mem.") at 5-8. Jackson now moves for summary judgment
pursuant to Federal Rule of Civil Procedure 56.
1
Jackson further argues that he is not required to indemnifY Park Line because Park Line
is not a party to the Indemnity Agreement. Jackson Mem. at 12.
3
B.
Summary Judgment Standard.
"Summary judgment must be granted where the pleadings, the discovery and disclosure
materials on file, and any affidavits show 'that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law."' Brown v. Eli Lilly & Co., 654 F .3d
347, 358 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). "In ruling on a summary judgment
motion. the district court must resolve all ambiguities, and credit all factual inferences that could
rationally be drawn, in favor of the party opposing summary judgment and determine whether
there is a genuine dispute as to a material fact, raising an issue for trial." McCarthy v. Dun &
Bradstreet Corp., 482 F .3d 184, 202 (2d Cir. 2007) (internal quotations and citations omitted).
"A fact is material when it might affect the outcome of the suit under governing law." !d.
An issue of fact is genuine only if"the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby. Inc" 477 U.S. 242,248, 91 L. Ed.
2d 202, I 06 S. Ct. 2505 (1986). The moving party bears the initial burden of establishing the
absence of any genuine issue of material fact, after which the burden shifts to the nonmoving
party to establish the existence of a factual question that must be resolved at trial. See Koch v.
Town of Brattleboro. Vermont, 287 F.3d 162, 165 (2d Cir. 2002) (citing Celotex Com. v. Catrett,
477 U.S. 317, 323, I 06 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
"In order to defeat a motion for summary judgment supported by proof of facts that would
entitle the movant to judgment as a matter of law, the nonmoving party is required under Rule
56( e) to set forth specific facts showing that there is a genuine issue of material fact to be tried. •
* *.
If the nonmoving party does not so respond, summary judgment will be entered against
him." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993) (citations omitted).
4
The nonmoving party "may not rely simply on conclusory statements or on contentions that the
affidavits supporting the motion are not credible * * *, or upon the mere allegations or denials of
the [nonmoving] party's pleading." !d. (internal quotation marks and citations omitted).
C.
Analysis
Jackson's motion raises two arguments: (I) the Indemnity Agreement did not apply to
losses arising from the accident at issue; and (2) Park Line is not entitled to indemnification
because it is not party to the Indemnity Agreement. Jackson's Memorandum of Law [Docket
Entry No. 193-25] ("Jackson Mem.") at 5-12. Since the first issue is dispositive, the Court need
not reach the second.
"Where a 'contract is clear and unambiguous on its face, the intent of the parties must be
gleaned from within the four corners of the instrument, and not from extrinsic evidence."' RJE
Corp. v. Northville Indus. Com., 329 F.3d 310,314 (2d Cir. 2003) (quoting DeLuca v. De Luc
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