Justin Nazario, Respondent,v.222 Broadway, LLC, et al., Respondents.---------------------------------222 Broadway, LLC, et al., Third-Party Respondents, v. Knight Electrical Services Corp., Third-Party Appellant. (And Other Third-Party Actions.)

Brief

N.Y.November 15, 2016

O'CONNOR REDD LLP ATIORNEYS AND COUNSELORS AT LAW STEVEN M. O'CONNOR* JOSEPH T. REDO" JOSEPH A. ORLANDO* AMY L. FENNO++ KEVIN PAGE* P.O. BOX 10001242 KING STREET I PORT CHESTER, NEW YORK 10573 MAIN 914·686·1700 I FAX 914·328·3184 WWW.OCONNORLAWFIRM.COM •MEMBER NY & CT BARS ++MEMBER NY & NJ BARS "MEMBER NY, CO & UT BARS State of New York Court of Appeals 20 Eagle Street CONNECTICUT OFFICE: 304 Federal Road, Suite 316 Brookfield, Connecticut 06804 DIRECT ALL CORRESPONDENCE TO P.O. BOX AT NY OFFICE September 9, 2016 Albany, New York 12207-1095 Attention: John P. Asiello, Esq. Re: Nazario v 222 Broadway APL-2016-00135 PETER URRETA JADE M. CAMERON* JOSEPH M. CIANFLONE HILLARY KAHAN WILLIAM C. NEVES++ JOSHUA M. GREENBERG++ KIEL M. DORAN++ Letter pursuant to section 500.11 of the Court of Appeals Rules of Practice in Support of Third-Party Appellant Knight Electrical's Appeal Setting Forth the Merits Dear Mr. Asiello: At the recommendation of your office, we respectfully request consideration of this reply, responsive to arguments raised in opposition received August 30,2016. I. KNIGHT ELECTRICAL'S WORK WAS ROUTINE MAINTENANCE THAT DID NOT REQUIRE REPLACEMENT OF LIGHTING FIXTURES Contrary to Plaintiff-Respondent's assertion Knight was retained to "replace electrical fixtures at the premises" and that the "nature of the work" and "its large scale" qualifies it as an "alteration" within the meaning of Labor Law § 240(1 ), Knight's work, consisting of nothing more than replacement of the inner components of lighting fixtures with energy efficient components has been repeatedly held to be routine maintenance by the courts. The fixtures in issue remained intact; they were not replaced or rewired according to testimony by every witnesses including Plaintiff Nazario. Under Labor Law§ 240(1), therefore, the work was routine maintenance. The fact that Knight replaced existing ballasts and bulbs inside the fixtures with more energy efficient components did not alter the essential nature of the work- ballasts and bulbs require replacement in the course of normal wear and tear, and this work has been repeatedly held to be routine maintenance. Esposito v. New York City Industrial Development Agency, 1 N.Y. 3d 526, 528 (2003). As stated in Saint v. Syracuse Supply Co., 25 N.Y.3d 117 (2015), wherein the the Court determined installation of a new, enlarged, advertizement qualified as an alteration under Labor Law§ 240(1): [P]laintiffs facts differ from those of prior cases where the Court found the injured worker's activity constituted routine maintenance, and thus was outside the coverage of the statute. Those cases involved simple tasks, involving minimal work. In comparison, the removal of an old advertisement and the installation of vinyl-covered plywood extensions for the purpose of enlarging the shape of the billboard to accommodate the new advertisement's artwork involves the type of physical change significant enough to constitute a section 240 (1) alteration, and to distinguish plaintiffs work from routine maintenance illustrated by the changing of a lightbulb, as in the case of Smith v Shell Oil Co ... Id at 126; see Abbatiello v. Lancaster Studio Assocs., 3 N.Y.3d 46 (2004). Although Plaintiff-Respondent emphasizes that Knight replaced multiple bulbs and ballasts pursuant to its subcontract with Lime Energy, this plainly did not alter the nature of Knight's work. (See Plaintiff-Respondents Letter at 2-3). In fact, Plaintiff-Respondent concedes in his letter that Knight's work involved replacement of inner components- not the fixtures themselves- and had to be "performed at night and on weekends" because the building was fully occupied. There were no holes drilled into walls or ceilings, nor reconfiguration or enlargement of fixtures or structures required for Knight to carry out the work - bulb and ballast replacement only. "Alteration", has been clearly defined by this Court as "making a significant physical change to the configuration or composition of the building or structure." 2 Joblon v. Solow, 91 N.Y.2d457 (1998); see Belding v Verizon N.Y.,Inc., 14 N.Y.3d 751 (2010)(Applying the bomb blast film to the lobby windows qualified as a significant alteration since it significantly altered the configuration or composition of the way the windows reacted to explosions, impacts and the elements.) While pointing to no physical change whatsoever to the building or lighting fixtures, Plaintiff-Respondent argues, under Joblon, replacement of multiple bulbs and ballasts throughout the building is akin to "chiseling a hole and running a wire through a wall to install a clock", hence a "significant physical change to the configuration ... of the building or structure." (Plaintiff-Respondent's Letter at 3) We submit Plaintiff- Respondent has gone far out on a limb to find an analogy here. The deposition testimony by every witness was consistent- Knight's work required no rewiring, no chiseling of any holes, or reconfiguration of the fixtures or the space. (SeeR 442) Contrary to Plaintiff-Respondent's contention Knight's work involved "demolition of existing fixtures and ballasts and installation and wiring of new fixtures and ballasts", clearly seeking to satisfy the Joblon criteria for a "significant alteration", every single witness said the work required no rewiring, and no fixture replacement- just replacement of bulbs and ballasts. Said Plaintiff Nazario: * * *My job, like I said, was a demo process which was removing the lens which is the grill, the bulbs, the pan, the ballasts, the sockets, pretty much everything that was in the fixture except for the actual housing, the inside housing. ( R 243) Nazario's task- removing the old grill, bulbs, pan, ballasts, sockets, and replacing them inside the very same housing- was not "demolition" as defined by the Industrial Code or case law. 1 Mr. Bicocchi of Jones Lang was unequivocal that Knight's work did not involve removal or replacement of fixtures, but only ballasts and light bulbs: 1 "Demolition work" is defined by the Industrial Code (see 12NYCRR § 23-1.4 [b] [ 16]) as " [ t ]he work incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment." See Baranello v. Rudin Mgmt. Co., 13 A.D.3d 245 (1st Dept. 2004); Coyago v Mapa Props., Inc., 73 A.D.3d 664 (1st Dept. 201 0). 3 A. . .. everything was replaced in kind. So you would take out the ballast and the bulb and replace it right then and there. Because the building was occupied, so you couldn't remove the fixture and come back another day. It had to be done at that moment ... ( R 448-449) Mr. Patyak of Lime Energy testified there was absolutely no rewiring of fixtures- only reconnection of the wiring after the bulbs and ballasts were replaced: A. . . . The existing fixture had the lamps removed, the existing lamps were removed, the existing ballast was removed, new energy efficient ballast was installed, new energy efficient lamps were installed. Q. Did that also involve rewiring of the fixtures, reconnection of wiring? A. Re-connection, yes; rewiring, no. Q. During the course of this project at any point in time, was there upgraded cable, BX or anything along those lines run for the purposes of the retrofitting job, to your knowledge? A. Not under this scope, no. Q. Under any other scope or under any other documents, was any of that type of work done? A. To my knowledge, no. ( R 442) InPicarov. NewYorkConventionCenter, 97 A.D.3d511 (1st Dept. 2012), the First Department reversed denial of Defendant's motion for summary judgment as to plaintiffs Labor Law § 240(1) claim, determining plaintiff performed routine maintenance not covered by § 240(1) when he fell from a ladder affixed to a scissor lift after repairing a light fixture. Picaro testified his work entailed changing the 4 whole fixture, and that he would obtain new sockets and bulbs from the building's storage area to perform his work. The Court however held the work to be routine maintenance: * * * plaintiffs work clearly involved "replacing components that require replacement in the course of normal wear and tear" (Esposito v New York City Indus. Dev. Agency, 1 NY 3d 526, 528, 802 NE2d 1080, 770 NYS2d 682 [2003 ]). Id at 512. Similarly, Plaintiff-Respondent Nazario's work did not involve fixture replacement and no demolition was required or even possible, since the building was fully occupied, requiring Knight to carry out the work at night and on weekends. As this Court decided in Esposito v. N.Y. City Indus. Dev. Agency, supra,: Section 240 (1) applies where an employee is engaged "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." Although repairing is among the enumerated activities, we have distinguished this from "routine maintenance" (Smith v Shell Oil Co.,85 N.Y.2d 1000, 1002, 630 N.Y.S.2d 962, 654 N.E.2d 1210 [1995]). The work here involved replacing components that require replacement in the course of normal wear and tear. It therefore constituted routine maintenance and not "repairing" or any of the other enumerated activities. Given the deep well of case law addressing the kind of lighting work in issue here - changing out light bulbs and ballasts - irrespective of how many light bulbs and ballasts Knight changed- Nazario's work does not qualify for protection under Labor Law§ 240(1). See Blanco vNBC Trust No. 1996A, 122 A.D.3d409(1st Dept. 2014 )(Blanco's work unlike Picaro, supra, qualified for protection under Labor Law § 240 (1) since the work was part of a component of a larger construction project.) Under the facts sub judice, there was no construction project taking place - the building was fully occupied, and the work had to be performed by Knight on weekends. In Konaz v. St. John's Preparatory School, 105 A.D.3d 912 (2d Dept. 2013), 5 the Second Department addressed a similar case in which a building mechanic fell from a ladder while replacing a ballast in a fluorescent light fixture. He testified he removed the fixture's grille and changed the light bulbs. Thereafter, he "was going to replace the ballast" and, while attempting to remove the reflector plate to expose the ballast, the ladder went out from under him. The court held the trial court erred in denying defendant's motion pursuant to Labor Law§ 240 (1) since the work did not "constitute erection, demolition, repairing, altering, painting, cleaning, or pointing of a building within the meaning of Labor Law § 240 (1 ). " The Court also held dismissal of the Labor Law§ 241 (6) claim was warranted since the plaintiffs work was not construction, excavation, or demolition. Citing Esposito v New York City Indus. Dev. Agency, supra. Nazario's work did not involve replacement of the lighting fixtures; nor was Knight's replacement of bulbs and ballasts a one time proposition. In fact, Lime Energy contracted with Respondent Jones Lang "to maintain the lighting fixtures over the four ( 4) year term of the agreement." ( R 909) Therefore, it was fully anticipated the bulbs and ballasts would require routine replacement. While the lamps installed by Knight were more energy efficient as per Lime Energy's contract with Jones Lang, they were still bulbs and ballasts that fit inside the existing fixtures. For these reasons, and under applicable law therefore, Plaintiffs work was "routine maintenance" rather than work covered by § 240( 1) or § 241 ( 6) . II. PLAINTIFF -RESPONDENT'S ANALYSIS OF §240(1) ON THE BASIS OF FORESEEABILITY OF THE RISK OF ELECTROCUTIONFAILSTOADDRESSTHEFACTITISNOT A GRAVITY RELATED RISK In his opposition letter, Plaintiff-Respondent argues "if the devices that were provided were inadequate to protect the plaintiff from a foreseeable risk, then proper safety devices were not provided." citing Felker v. Coming, Inc., 90 N.Y. 2d 219( 1997) (Plaintiff-Respondent's Letter at 4) Plaintiffs reliance on Felker v. Coming, Inc., supra, however, is clearly erroneous. The basis ofthe Court's holding in Felker was the failure of the contractor to provide plaintiff with any safety device whatsoever to protect him from the anticipated risk ofhaving to reach over the ladder to paint the alcove. Said the Court: 6 Here, there were two distinct elevation-related risks associated with the paint detail that plaintiff was directed to perform (see, Barnaby v A. & C. Props., 188 AD2d 958, 959). The first risk was created by the need to elevate plaintiff to the height above the alcove wall, and the stepladder was the enumerated safety device provided to protect the worker from the risk inherent in having to work at a height over eight feet above ground level (id.). No allegations were raised that the ladder itself was defective, that it slipped, tipped, was placed improperly or otherwise failed to support plaintiff at that elevation. Thus, contrary to Cook's claim, we are not concerned with the adequacy of this particular ladder as a device to safely elevate plaintiff. More importantly, a second risk was created here by plaintiffs need to reach over the eight-foot alcove wall and work over an elevated, open area. It is the contractor's complete failure to provide any safety device to plaintiff to protect him from this second risk of falling over the alcove wall and through the suspended ceiling to the floor below that leads to liability under Labor Law § 240 (1) in this case ( Zimmer v Chemung County Performing Arts, 65 NY2d 513, supra; Barnaby v A. & C. Props., 188 AD2d, at 959, supra). ld at 224. While the need to elevate Plaintiff to the height of the alcove was addressed by the a ladder, the entirely separate risk of reaching over the alcove wall over the elevated open area was not. The second risk - unlike the risk of electrocution- was clearly elevation related. The Court reiterated in Felker that to establish prima facie § 240 (1) liability, a worker must generally establish "the absence of or defect in a safety device was the proximate cause of his or her injuries." Citing Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 524 (1985); Duda v Rouse Constr. Corp., 32 N.Y.2d 405, 410 ( 1973 ). The Court determined plaintiff had satisfied his prima facie proof by demonstrating the complete absence of any safety device addressing the need to reach over the elevated alcove as part of plaintiffs work: ... because no device was provided in this case to protect plaintiff from a fall through an open, elevated area above the alcove--the precise type of injury that Labor Law § 240 ( 1) is designed to prevent, on this record 7 we are satisfied that the absence of any protection was the proximate cause of plaintiffs injuries as a matter oflaw. As in Gordon, there is no view of the evidence here which could lead to the conclusion that the violation of Labor Law § 240 (1) was not the proximate cause of the accident. .. ld at 225. Foreseeability of the risk was not the basis for liability in Felker- the failure to provide plaintiff with any safety device whatsoever to address the particular elevation risk was determined to be the proximate cause of plaintiffs InJUry. Moreover, Plaintiff-Respondent's analogy of the risk of electrocution to Felker's need to access the area above the alcove is misplaced. Electrocution is not an elevation related risk, although we do not suggest it may never be a factor in Labor Law§ 240 (1) liability. Contrary to Plaintiffs contention there was a "the complete failure of the defendants to provide [Nazario] with any safety device to protect him from the second foreseeable risk (of electric shock) and consequential fall", the argument skirts the obvious fact that electrocution is not an elevated risk. (Plaintiff- Respondent's Letter at 5) Although he argues that, since the risk of electrocution is foreseeable in the context of Plaintiffs work, and that this fact warrants§ 240 (1) liability, the case law Plaintiff-Respondent relies upon is readily distinguished from these facts since, in each case, the ladder in issues slipped or tipped, resulting in injury to the worker. (Plaintiff-Respondent's Letter at 5-6) In Klein v. City ofNew York, 89 N.Y. 2d 833 (1996), the Court held liability was warranted since the ladder in issue slipped on "gunk" on the floor, and in Gordon v. Eastern Railway Supply, Inc., 82 N.Y. 2d 555 (1993), plaintiff fell from a ladder that tipped when plaintiff activated a sandblaster. (Defendants' failure to provide plaintiff with a scaffold or ladder while he sandblasted the railroad car was a substantial cause leading to his fall and the injuries he sustained.) Those decisions hinged on the failure of defendant to address an elevation related hazard causing instability in the elevation safety device. See also Nimirovski v. Vornado Realty Trust Co., 29 A.D. 3d 762 (2d Dept. 2006) cited by Plaintiff- Respondent (scaffolding shook when metal was dropped, striking scaffold); Quinlan v. Eastern Refractories Co., Inc., 217 A.D.2d 819 (3rd Dept. 1995)(stepladder struck by machinery during warehouse operation, resulting in plaintiffs injury); Miles v. Great Lakes Cheese ofNew York, Inc., 103 A.D. 3d 1165 (4th Dept. 2013)(plaintiff 8 injury when co-worker dropped planks onto plaintiff). There is no evidence on this factual record that electric shock caused ladder instability. There is no evidence on these facts that Nazario's later slipped or tipped when he fell. He simply fell from the ladder when the electrical current shut off, causing him to fall backward. Plaintiff-Respondent's suggestion "foreseeability ofthe risk of' electrocution' (or electric shock)" is the proper inquiry "because the adequacy (or inadequacy) of a safety device necessarily requires consideration ofthe risks associated with the task at hand". However, he altogether ignores the fact there is no proof- expert or otherwise- any safety device would have prevented Nazario's fall once the power turned off. (Plaintiff-Respondent Letter at 7) The risk encountered in this case was not an elevation related risk contemplated by §240(1 ). While conceding "all that the law requires is for Plaintiffto show that there was a violation of the statute, and that the violation was the proximate cause of his injury", Plaintiff-Respondent fails to come forward with exactly that - proof an inadequate safety device proximately caused his injury. On this factual record, there is no proof that any elevation device-scaffold, scissor lift, or different ladder- would have provided a different outcome - regardless of what he was standing on at the time, plaintiff would have fallen backward when the power shut off. There is simply no proof on this record an inadequate elevation related safety device proximately caused his injury. (Plaintiff-Respondent's Letter at 1 0) See Zimmer v Chemung County Performing Arts, supra at 524 (1985); Duda v Rouse Constr. Corp., supra at 410 (1973). Plaintiff-Respondent has clearly misconstrued the Court's holding in Zimmer v. Chemung County Performing Arts, Inc., supra, when he argues plaintiff has no burden to demonstrate what type of safety device would have protected him from falling after receiving an electric shock. In Zimmer, the risks encountered were gravity related- In the first action, the worker was hurt while erecting a steel skeleton when he lost his grip and fell. In the second, the worker fell from the roof while welding. In both cases, the risk encountered was directly elevation related. See Saint v. Syracuse Supply Co., 25 N.Y.3d 117 (2015)(Plaintiff, who fell fromacatwalkafter detaching his lanyard to reach another location near the advertizement when a strong gust of wind caused him to fall, established a prima facie case ofliability under Labor Law§ 240(1) ). In each case, the risk encountered by the worker was directly related to the fact it was performed at an elevation, rather than tangentially related by virtue 9 of the fact the electric shock occurred while working on a ladder; the risks addressed by the case law were clearly gravity related, and the injury unquestionably arose from the failure to provide an elevation related safety device. )2 III. THIRD-PARTY PLAINTIFF -RESPONDENT LIME IS NOT ENTITLED TO CONTRACTUAL INDEMNIFICATION SINCE ITS LIABILITY IS NOT PURELY VICARIOUS Counsel to Lime asserts in his Letter in Opposition that Knight was not a party to Lime's agreement with Jones Lang, and that any liability exposure on Lime's part is purely vicarious. Although Lime argues that the First Department correctly decided there was no active fault on Lime's part, since it did not direct, control ,or supervise Knight's work, the Court's holding is inconsistent with the plain language ofLime's Purchase Order with Jones Lang: 5. Supervision and Construction Procedures: The Service Contractor shall supervise and direct the Work, using the Service Contractor's best skill and attention. The Service Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract Documents. 2 In our original letter submission, we previously addressed Plaintiff- Respondent's argument safety belts should have been provided, even though Plaintiff testified he never used a safety belt in conjunction with work on an A-frame ladder. The argument fails to address the central question whether electrocution posed a second, separate, elevation related risk requiring a second elevation device as in Felker v. Coming, Inc., supra. Plaintiffs counsel clearly misconstrues Zimmer, when he suggests "[i]t does not avail Knight ... that safety belts were not generally used ... on A-frame ladders". Counsel quotes from Zimmer that "where an owner or contractor fails to provide any safety devices, liability is mandated .. without regard to ... custom and usage" (Plaintiff-Respondent's Letter at 11) As discussed, this is not a case in which no elevation safety device was provided; Plaintiff was provided with an A-frame ladder, and there is no evidence another device would have prevented him from falling when electrocuted. 10 5.1 The Service Contractor shall be responsible to Client and the Owner for acts and omissions ofServict;! Contractor's employees, subcontractors and their agents and employees, and other persons performing portions ofthe Work under a contract with the Service Contractor ... ( R 986) At this juncture, as the First Department has decided Plaintiff is entitled to Labor Law § 240(1) liability, Lime is not entitled to contractual indemnification from Knight, since the plain language of Lime's purchase order with Jones Lang establishes its nondelegable duty to supervise Knight's work, as well as responsibility for Knight's means and methods as Lime's subcontractor. In fact, Lime's counsel concedes in its Letter Opposition that Lime's Senior Project Manager, Joseph Potyak was "involved with this particular project from commencement to completion." (Third-Party Plaintiff-Respondent Lime's Letter p. 9) Contrary to Lime's suggestion that since Knight was not a party to the agreement between Lime and Jones Lang, Knight is precluded from relying upon the plain language of that agreement, the critical issue for purposes of analyzing enforceability of the indemnification clause contained in the Subcontract between Lime and Knight is whether or not Lime may be charged with negligence; clearly under the terms of Lime's agreement with Jones Lang they may be, and it is irrelevant whether Knight was a party to or third party beneficiary of Lime's agreement with Jones Lang for purposes of this analysis. (Third-Party Plaintiff-Respondent Lime's Letter, p. 3, FN 1) In Brooks v. Judlau Contr., Inc., 11 N.Y.3d 204 (2008), the Court held: [T]he statute does permit a partially negligent general contractor to seek contractual indemnification from its subcontractor so long as the indemnification provision does not purport to indemnify the general contractor for its own negligence. As such, the provision is enforceable and does not violate General Obligations Law § 5-322.1. Here, the Subcontract between Lime and Knight purports to indemnify Lime for its own negligence, and, pursuant to the Agreement between Lime and Jones 11 Lang, Lime's contractual duty is unequivocal- Lime "shall supervise and direct the work" and "shall be solely responsible for ... construction means, methods, ... procedures" ( R 986). It matters not one iota that Knight was not a party to Lime's agreement with Jones Lang; regardless, Lime was contractually responsible for supervision of Knight's work, and Knight's means and methods. "[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor." MottvTromel Constr. Corp., 79 A.D.3d 829,831 (2dDept. 2010); Hirsch v Blake Hous., LLC, 65 A.D.3d 570, ·571 (2d Dept.2009). Lime has altogether failed to come forward with proof it is free from negligence- in fact, it is contractually precluded from doing so. Therefore, enforcement ofthe indemnification clause in Lime's subcontract with Knight plainly violates General Obligations Law § 5-322.1. Mikelatos v. Theofilaktidis, 105 A.D.3d 822 (2d Dept. 2013); Hirsch v. Blake Hous., LLC, 65 A.D.3d 570 (2d Dept. 2009); Cavanaugh v. 4518 Assocs., 9 A.D.3d 14 (1st Dept. 2004)( First Department declined to enforce an indemnification provision contained in a subcontract on the basis of the general contractor's supervisory responsibility pursuant to its contract with the owner.) IV. JONES LANG IS NOT A THIRD PARTY BENEFICIARY OF THE SUBCONTRACT BETWEEN LIME AND KNIGHT While conceding the Subcontract between Lime and Knight does not list it as an intended third party beneficiary, Jones Lang nevertheless argues in its Letter Opposition that its entitlement to contractual indemnification as a third party beneficiary of that agreement on the basis of the use of the word "client" in the Subcontract, which Jones Lang also concedes is not defined anywhere in the Subcontract. (Jones Lang Letter at p. 7) Jones Lang argues it was Lime's client by virtue of its own separate agreement with Lime and, as such, it is entitled to contractual indemnification from Knight. We disagree, and Jones Lang's interpretation defies extensive case law pertaining to contract interpretation. Jones Lang, concededly a non-party to the Subcontract, argues it should be permitted to weigh in on what the parties intended by the use ofthe term "client". We submit that a non-party who seeks to benefit from a contract is not only lacking in credibility, but any legitimate basis other than pure speculation to state that "client" 12 meant Jones Lang under the Subcontract between Lime and Knight. In fact, Jones Lang's interpretation belies the most logical meaning of the term "client", one that is in fact spelled out in the writing itself. Since the Subcontract specifically mentions Bank of America as the only party other than Lime and Knight, it is logical and reasonable to conclude the parties intended to benefit the bank as the "client" to be benefitted. Logically, Bank of America was the tenant which fully occupied the building at the time of Knight's lighting work and, consequently, the work had to be performed at night and on weekends. Most logically, therefore, the parties, Lime and Knight intended to benefit Bank of America in the event of personal injury to a bank employee or customer, or damage to the bank's place ofbusiness. The most logical and reasonable interpretation of'client" in the Subcontract, therefore, is Bank of America. As stated by the First Department in Marin v Constitution Realty, LLC, 128 A.D.3d 505 (1st Dept. 2015): Under well established precedent, agreements are to be generally construed in accord with the parties' intent (see Slatt v Slatt, 64 NY2d 966,477 NE2d 1099,488 NYS2d 645 [1985]). The best evidence of the parties' intent is "what they say in their writing" (Schron v Troutman Sanders LLP, 20 NY3d 430, 436 [2013], quoting Greenfield v Philles Records, 98 NY2d 562, 569, 780 NE2d 166, 750 NYS2d 565 [2002]). "[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms" (W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 162,566 NE2d 639, 565 NYS2d 440 [1990]; Jet Acceptance Corp. v Quest Mexicana S.A. de C.V., 87 AD3d 850,854,929 NYS2d206 [1stDept2011]). This rule is particularly applicable where the parties are sophisticated and are negotiating at arm's length (see Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470,475, 807 NE2d 876,775 NYS2d 765 [2004]). Language in a written agreement is deemed to be clear and unambiguous where it is reasonably susceptible of only one meaning or interpretation (citations omitted). Finally, " [ e ]xtrinsic evidence may not be introduced to create an ambiguity in an otherwise clear document" (Jet Acceptance Corp., 87 AD3d at 854, citing W.W.W. Assocs., 77 NY2d at 163 ... Jones Lang has introduced extrinsic evidence- at best in order to create an 13 ambiguity- and worst, to define a term in a contract to which they are not a party- when the Subcontract as between the parties thereto is susceptible of only one reasonable interpretation, i.e. that Lime and Knight intended to indemnify Bank of America for personal injury and damages to its premises during completion of the work. The Subcontract lists only one third- party and that is Bank of America the tenant-occupant of the space where the work was taking place. The Subcontract does not suggest it is subject to the terms of any other writing, including the agreement between Jones Lang and Lime. We submit, therefore, the lower courts erroneously concluded Jones Lang was a third-party beneficiary of Knight's Subcontract, since there is absolutely no evidence in the plain, unambiguous language of the Subcontract, that the term "client" is subject to more than one interpretation - Bank of America. W.W.W. Assocs. v. Giancontieri, supra; see also, Quadrant Structured Prods. Co., Ltd. v Vertin, 23 N.Y.3d 549 (2014). For this reason, we submit the Court's conclusion Jones Lang is entitled to contractual indemnification is clearly erroneous. CONCLUSION For the reasons stated, and in Appellant Knight's original Letter, we respectfully ask that the decision below be reversed, and that Plaintiff-Respondent Nazario's action be dismissed or, alternatively, that his motion for summary judgment pursuant to Labor Law § 240(1) be denied on the basis of substantial issues of fact. We further ask the Court to reverse the grant of contractual indemnification to Defendants-Respondents Lime Energy and Jones Lang, and grant such other and further relief as it may determine is just and proper. Respect ly Submitted, AmyL. Fenno 14 Certification of Compliance The forgoing brief was prepared on a computer. A proportionally spaced typeface was used as follows: Name of Typeface: Time New Roman Point Size: 14 Line Spacing: Double The total of words in the reply letter, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citation, proof of service, certification of compliance or any authorized addendum containing statues, rules and regulations, etc. is 5,050 words. 15