ADDITIONAL CASES Bank of America, N.A., Third-Party Plaintiff v. Ferrandino & Son, Inc., Third-Party Defendant Bank of America, N.A., Second Third-Party Plaintiff v. ADM Landscape Corp., Second Third-Party Defendant Ferrandino & Son, Inc., Third Third-Party Plaintiff v. ADM Landscape Corp., Third Third-Party Defendant The following electronically filed documents read on this motion by defendant/third-party plaintiff/second third-party plaintiff, BANK OF AMERICA, N.A. (Bank of America) for an Order pursuant to CPLR 3212 and 3214, granting Bank of America summary judgment on the third-party claim for breach of contract against Ferrandino & Son, Inc. for failing to provide a defense to Bank of America, indemnify Bank America, and provide general liability insurance for the benefit of Bank of America with respect to the claims of plaintiff Armando Millan in the within matter; and upon the granting of the within motion, setting this matter down for an inquest as to the total damages due and owing to Bank of America from Ferrandino & Son, Inc. after the trial of the within matter: Papers Numbered Notice of Motion-Affirmation-Exhibits EF 146-175 Affirmation in Opposition-Exhibits EF 177-184 Reply Affirmation EF 185-190 This personal injury action arises out of a February 23, 2015 slip and fall upon snow and ice upon a sidewalk outside of the premises known as 117-20 Queens Boulevard, Forest Hills, NY. Bank of America was the lessee of a corner unmanned ATM center. Defendant Yorkshire Realty was the owner of the premises. Non-party CBRE, Inc., Bank of America’s facility management partner, retained the services of Ferrandino & Son, Inc. (Ferrandino) via a written Agreement to provide snow and ice removal at numerous Bank of America banking centers, including the subject premises. Ferrandino thereafter subcontracted out its obligations for snow and ice removal at the subject premises to ADM Landscape Corp. (ADM) via a Subcontract Agreement. Bank of America commenced a third-party action against Ferrandino, alleging contractual claims for breach of contract due to Ferrandino’s failure to defend and indemnify Bank of America with respect to the claims of plaintiff and due to Ferrandino’s failure to provide additional insured status and insurance coverage to Bank of America with respect to the claims of plaintiff. Bank of America now seeks summary judgment against Ferrandino. Scott Wachenfeld appeared for an examination before trial on behalf of Bank of America on March 27, 2018 and testified that he is the Senior Vice President and Regional Director for Northeast locations for Bank of America. Bank of America entered into a Standard Form Lease Agreement (hereinafter Lease) for an unmanned ATM location at the subject premises with Yorkshire Realty on March 31, 2017 for a term of ten years. CB Richard Ellis a/k/a CBRE was the facility manager for Bank of America at the subject premises. Yorkshire Realty was the owner of the subject premises. Pursuant to the Lease, Bank of America was responsible for snow and ice removal upon the sidewalks adjacent to the premises. CBRE retained Ferrandino to perform snow removal at the subject premises. CBRE preformed many functions for Bank of America, including entering into contracts on behalf of Bank of America. Pursuant to the Master Contractor-Vendor Agreement (hereinafter the Agreement), Ferrandino was responsible to ensure that the ground was free from snow and ice on a constant basis at the premises. The premises has an ATM center that is open 24 hours a day, seven days a week. Bank of America performed no work itself of any kind. He is familiar with the Agreement and the standards for snow removal that are expected under the Agreement. According to the Agreement, the sidewalks are to be kept bare 24 hours a day, seven days a week, and Ferrandino must come back as needed to make sure that the sidewalks continue to remain bare in the event that snow melts and then re-freezes at nighttime. Bare pavement is the requirement under the Agreement. Ferrandino had a continuous obligation with respect to snow and ice removal. Matthew West appeared for an examination before trial on behalf of Ferrandino on May 8, 2018 and testified that he is employed by Ferrandino as the Director of Client Management. He is the Senior Operations Manager from 2014 to 2017 and managed the Bank of America account. CBRE, Bank of America’s property manager, had contracted directly with Ferrandino. The subject premises is not an area where Ferrandino would perform snow removal and ice treatment services itself. Regarding the subject premises, Ferrandino arranged for a third-party vendor to provide snow and ice treatment services. The only scenario under which Ferrandino was obligated to remove snow and ice from the sidewalks was due to snow and ice from the natural elements falling from the sky or the melting and re-freezing of snow that had naturally fallen and been removed or piled. It was not Ferrandino’s responsibility to remove and treat snow piled on the subject sidewalk from City plows clearing the streets and piling snow on the sidewalks, snow falling off of the roof, and/or another tenant dumping snow on the sidewalk. He is not familiar with any insurance procurement obligations on the part of Ferrandino under the Agreement with CBRE. After being shown invoices submitted to Ferrandino by ADM for the work ADM performed at the subject premises in February 2015, Mr. West testified that ADM provided services at the subject premises in the days leading up to plaintiff’s fall pursuant to its contractual agreement with Ferrandino. Andrew DiMarino appeared for an examination before trial on behalf of ADM on May 22, 2018 and September 6, 2019 and testified that he is the president and sole owner of ADM. ADM was retained by Ferrandino to perform snow removal services at the subject location. His crews would be dispatched to pre-treat surfaces when there was a threat of a storm. After the storm, his crew would remove the snow and de-ice. ADM would monitor and, if needed, would de-ice again. He personally rode around and checked all locations for re-freeze conditions. A spreadsheet for February 21, 2015 and February 22, 2015 indicated that ADM cleared 4.5 inches of snow from the subject premises, after which sodium chloride was again put down as a de-icer, which was always done after snow removal. ADM performed pre-treatment de-icing on February 21, 2015 at 3:55 p.m. and cleaning, which included the application of calcium chloride at 11:50 p.m. He remembered visiting the subject premises after snow and ice removal services were performed on February 21st and the subject premises was clear from February 21st forward. No further services were needed. On February 23, 2015, he checked the subject location and found that it did not need shoveling or any application of calcium chloride. Bank of America submits a copy of the Master Contractor-Vendor Agreement dated September 1, 2013. The Agreement provides that Ferrandino “expressly acknowledges and agrees that the rights of CBRE set forth in this Agreement shall inure to CBRE, Bank of America, N.A….and all their respective affiliates, who shall be deemed to be third-party beneficiaries hereof”. The agreement was in full force and effect from September 1, 2013 through August 30, 2016. Paragraph 13 of the Agreement, entitled “Indemnification”, provides, in relevant part: To the fullest extent permitted by law, [Ferrandino] shall defend…indemnify, pay, save and hold harmless [Bank of America] from and against any liabilities, damages…costs, expenses, suits, losses, claims, actions, fines, and penalties (including, without limitation, court costs, reasonable attorneys’ fees and any other reasonable costs of litigation)…that [Bank of America] may suffer, sustain or incur arising out of or in connection with (i) [Ferrandino's] work or presence on the Owner Facilities or other work site, including but not limited to any negligent acts or grossly negligent acts, errors or omissions…of [Ferrandino], its employees, subcontractors or agents…(ii) any breach by [Ferrandino] of this Agreement. As per Ferrandino’s Response to Combined Demands of Bank of America dated December 9, 2016, Ferrandino initially maintained commercial general liability insurance with Harleysville Preferred Insurance Company with policy limits of $2 million per occurrence. After the date of the subject incident, Harleysville either merged with or was taken over by Nationwide Insurance Company. Bank of America tendered its defense to Ferrandino on May 24, 2016. Bank of America further tendered its defense to Nationwide on December 29, 2016. To date, Ferrandino has provided no contractual protections to Bank of America. Regarding the branch of the motion seeking summary judgment against Ferrandino for failure to procure insurance, “it is well established that the agreement to purchase insurance coverage is clearly distinct from and treated differently from the agreement to indemnify” (McGill v. Polytechnic Univ., 235 AD2d 400, 401-02 [2d Dept. 1997]). Any potential negligence on Ferrandino’s part is irrelevant as to whether it was obligated to purchase liability insurance naming Bank of America as an additional insured (see Ribadeneyra v. Gap, Inc., 287 AD2d 362 [1st Dept. 2001]). Here, the Agreement obligates Ferrandino to obtain commercial general liability insurance with policy limits of $1 million per occurrence and $5 million in excess coverage, which was to name Bank of America as an additional insured. In opposition, Ferrandino has failed to provide any evidence that it procured the insurance required by the Agreement. Accordingly, the failure of Ferrandino to show that it had purchased the insurance required under the Agreement, renders Ferrandino responsible for all resulting damages to Bank of America (see McGill v. Polytechnic Univ., 235 AD2d 400 [2d Dept. 1997]). Damages recoverable include out-of-pocket expenses, the cost of the premiums and additional costs incurred such as deductibles, co-payments, future increased premiums, and costs for the commencement of third-party suits (see Inchaustegui v. 665th Avenue Limited Partnership, 96 NYS2d 111 [2001]; Encarnacion v. Manhattan Powell LP, 258 AD2d 339 [1st Dept. 1999]; Morel v. City of New York, 192 AD2d 428 [1st Dept. 1993]). Moreover, based upon the Lease obligations of Bank of America due and owing to Yorkshire Realty, Yorkshire Realty and its commercial general liability insurer, Travelers, tendered the defense of Yorkshire Realty to Bank of America. Bank of America accepted the tender of defense of Yorkshire Realty via correspondence of April 3, 2019 and thereafter substituted in as a counsel for Yorkshire Realty. Thus, all defense costs incurred in the defense of this action by Bank of America, both on its behalf and on behalf of Yorkshire Realty, are recoverable measures of damages. Regarding the branch of the motion seeking summary judgment against Ferrandino for its breach of its contractual obligation for defense and indemnification, a party is entitled to full contractual indemnification provided that the “intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances” (Margolin v. New York Life Ins. Co., 32 NY2d 149, 153 [1973]). However, the 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” (Mohan v. Atlantic Ct., LLC, 134 AD3d 1075 [2d Dept. 2015], quoting Cava Constr. Co, Inc. v. Gealtec Remodeling Corp., 58 AD3d 660, 662 [2d Dept. 2009]; see Palomeque v. Capital Improvement Servs., LLC, 145 AD3d 912 [2d Dept. 2016]; Bleich v. Metropolitan Mgt., LLC, 132 AD3d 933 [2d Dept. 2015]). Bank of America argues that it is entitled to contractual indemnification as the indemnification obligation contained in the Agreement contained a clear and unequivocal defense and indemnification obligation on the part of Ferrandino and in favor of Bank of America. Additionally, Bank of America contends that it has established that no actions or inactions on its part caused or contributed to the subject incident. Rather, plaintiff’s incident arose out of the work which Ferrandino contracted to perform at the subject premises. In opposition, Ferrandino contends that Bank of America has failed to establish its freedom from negligence based on Mr. West’s testimony that Ferrandino was only responsible for clearing snow and ice conditions relating to weather events, not from snow and/or ice resulting from City plows, falling from the roof the subject building, drainage issues, or other tenants depositing snow on the sidewalk. Additionally, Ferrandino contends that Bank of America failed to establish that plaintiff’s incident arose out of or in connection with Ferrandino’s work or presence on the subject property. In reply, Bank of America submits weather records, indicating that on February 22, 2015, there was light freezing rain from midnight and up through 5:28 a.m. Thereafter, light snow began and continued until 6:51 a.m. Based on the weather records and Mr. DiMarino’s admission that ADM left the subject premises at 11:50 p.m. on February 21, 2015 and did not return until February 23, 2015, Ferrandino was negligent in, inter alia, failing to return to the subject premises to assess conditions and perform any de-icing or additional services. On the evidence submitted herein, including, inter alia, the fact that the subject location was an unmanned ATM center with no staff on site, the Agreement indicating that the sidewalks must be shoveled, plowed, sanded and deemed safe for pedestrian traffic at all times, Mr. DeMartino’s testimony that he did not return to the subject premises on February 22, 2015, ADM’s invoices, and, inter alia, the weather records indicating that there was a freezing rain and light snow on February 22, 2015, this Court finds that plaintiff’s claim arose out of or in connection with Ferrandino’s work or presence and/or any lack of work or presence at the subject location. ADM’s arguments that Bank of America may have been negligent are merely speculative and insufficient to raise a triable issue of fact to defeat this motion (see Scher v. Kiryas Joel Housing Development Fund Co., 17 AD3d 660 [2d Dept. 2005]). Thus, Bank of America is entitled to contractual indemnification from Ferrandino. Accordingly, and for the above stated reasons, it is hereby ORDERED, that BANK OF AMERICA, N.A.’s motion for summary judgment is granted against FERRANDINO & SON, INC.; and it is further ORDERED, BANK OF AMERICA, N.A. shall have a hearing for the assessment of damages against FERRANDINO & SON, INC. at the time of trial. Dated: October 18, 2019 Long Island City, NY
