Opinion
2012-10-3
Zahid ZAIDI, plaintiff, v. NEW YORK BUILDING CONTRACTORS, LTD., et al., defendants third-party plaintiffs-respondents, et al., defendant; LTC Electric, Inc., third-party defendant-appellant.
Fabiani Cohen & Hall, LLP, New York, N.Y. (Thomas J. Hall and P. Michelle Kucsma of counsel), for third-party defendant-appellant. Hankin & Mazel, PLLC, New York, N.Y. (Mark L. Hankin and Noe Solorzano of counsel), for defendants third-party plaintiffs-respondents.
Fabiani Cohen & Hall, LLP, New York, N.Y. (Thomas J. Hall and P. Michelle Kucsma of counsel), for third-party defendant-appellant. Hankin & Mazel, PLLC, New York, N.Y. (Mark L. Hankin and Noe Solorzano of counsel), for defendants third-party plaintiffs-respondents.
DANIEL D. ANGIOLILLO, J.P., ARIEL E. BELEN, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), dated October 25, 2010, as, upon reargument, adhered to so much of its original determination in an order of the same court dated April 16, 2007, as denied that branch of its motion which was for summary judgment dismissing the fourth cause of action in the third-party complaint.
ORDERED that the order dated October 25, 2010, is reversed insofar as appealed from, on the law, with costs, and, upon reargument, so much of the determination in the order dated April 16, 2007, as denied that branch of the motion of the third-party defendant which was for summary judgment dismissing the fourth cause of action in the third-party complaint is vacated, and that branch of the motion is granted.
The plaintiff commenced this action against the defendants to recover damages for personal injuries sustained on a construction site while he was employed by the third-party defendant LTC Electric, Inc. (hereinafter LTC). The defendants third-party plaintiffs, New York Building Contractors, Ltd., and Valenza Contractors, Inc., the owner of the premises and the general contractor for the construction project, respectively, commenced a third-party action against LTC, asserting four causes of action.
LTC moved for summary judgment dismissing the third-party complaint. In an order dated April 16, 2007, the Supreme Court granted those branches of the motion which were for summary judgment dismissing the first, second, and third causes of action. However, the court denied that branch of LTC's motion which was for summary judgment dismissing the fourth cause of action, which alleged breach of contract. The court determined that there was an issue of fact as to whether LTC breached an agreement to procure insurance naming the third-party plaintiffs as additional insureds.
LTC subsequently moved for leave to reargue that branch of its motion which was for summary judgment dismissing the fourth cause of action in the third-party complaint. Upon reargument, the Supreme Court adhered to its original determination with respect to that branch of the motion.
“The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent” ( Greenfield v. Philles Records, 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166). “Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” ( id. at 579, 750 N.Y.S.2d 565, 780 N.E.2d 166).
“Extrinsic evidence of the parties' intentions may be considered only if the agreement is ambiguous or incomplete” ( Knight v. Barteau, 65 A.D.3d 671, 672, 884 N.Y.S.2d 470;see Henrich v. Phazar Antenna Corp., 33 A.D.3d 864, 867, 827 N.Y.S.2d 58). However, courts may not add terms to a contract and thereby make a new contract for the parties under the guise of interpreting the writing ( see Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470, 475, 775 N.Y.S.2d 765, 807 N.E.2d 876;Henrich v. Phazar Antenna Corp., 33 A.D.3d at 867, 827 N.Y.S.2d 58). Therefore, a court “will not imply a term where the circumstances surrounding the formation of the contract indicate that the parties, when the contract was made, must have foreseen the contingency at issue and the agreement can be enforced according to its terms” ( Reiss v. Financial Performance Corp., 97 N.Y.2d 195, 199, 738 N.Y.S.2d 658, 764 N.E.2d 958;see Henrich v. Phazar Antenna Corp., 33 A.D.3d at 867, 827 N.Y.S.2d 58). “Where a valid contract is incomplete, extrinsic evidence is admissible to complete the writing if it is apparent from an inspection of the writing that all the particulars of the agreement are not present, and that evidence does not vary or contradict the writing” ( Matthius v. Platinum Estates, Inc., 74 A.D.3d 908, 909, 903 N.Y.S.2d 477;see Thomas v. Scutt, 127 N.Y. 133, 138, 27 N.E. 961;Valente v. Allen Shuman & Irwin Richt, D.P.M., P.C., 137 A.D.2d 678, 679, 524 N.Y.S.2d 770).
Here, LTC established that its failure to procure insurance naming the third-party plaintiffs as additional insureds did not constitute a breach of contract. LTC submitted, inter alia, the written agreement between it and the third-party plaintiffs, which did not require it to procure insurance naming the third-party plaintiffs as additional insureds. Accordingly, LTC established, prima facie, its entitlement to summary judgment dismissing the fourth cause of action, which alleged breach of contract ( see Flynn v. Toys “ R ” Us, Inc., 31 A.D.3d 603, 604, 819 N.Y.S.2d 537).
In opposition, the third-party plaintiffs failed to raise a triable issue of fact. Contrary to the contention of the third-party plaintiffs, the written agreement between them and LTC was complete and enforceableaccording to its terms ( see Reiss v. Financial Performance Corp., 97 N.Y.2d at 199, 738 N.Y.S.2d 658, 764 N.E.2d 958;Thomas v. Scutt, 127 N.Y. at 138, 27 N.E. 961). Accordingly, the extrinsic evidence offered by the third-party plaintiffs in opposition to LTC's motion should not have been considered and, upon reargument, the Supreme Court should have granted that branch of LTC's motion which was for summary judgment dismissing the fourth cause of action in the third-party complaint ( see Cohn v. Titan Drilling Corp., 79 A.D.3d 925, 926, 913 N.Y.S.2d 726;Harris v. Hallberg, 36 A.D.3d 857, 859, 828 N.Y.S.2d 579).