ADDITIONAL CASES Clark Construction Corporation Plaintiff, v. Town & Gardens, Ltd., Arqenta Inc. Defendants; 595907/2018. The following e-filed documents, listed by NYSCEF document number (Motion 003) 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 186, 218, 226, 229, 233, 234, 235 were read on this motion to/for JUDGMENT — SUMMARY. The following e-filed documents, listed by NYSCEF document number (Motion 004) 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 215, 216, 217, 219, 221, 222, 223, 224, 225, 227, 230, 232 were read on this motion to/for DISMISS. The following e-filed documents, listed by NYSCEF document number (Motion 005) 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 220, 228, 231 were read on this motion to/for JUDGMENT — SUMMARY. DECISION ORDER ON MOTION In this subrogation action, defendant/third-party plaintiff Clark Construction Corporation (Clark) moves, inter alia, for summary judgment dismissing the third amended complaint and all cross claims insofar as asserted against it and for summary judgment on its cross claims against defendant Donato Inc. (Donato) for contractual indemnification and breach of contract (Mot. Seq. No. 003). Plaintiff AIG Property Casualty Company a/s/o Donald J. Gogel (AIG) cross-moves for leave to serve a fourth amended complaint (Mot. Seq. No. 003). Donato moves for summary judgment dismissing the third amended complaint and all cross claims insofar as asserted against it (Mot. Seq. No. 004). Defendant/third-party defendant Arqenta Inc. (Arqenta) moves for summary judgment dismissing all claims and cross claims insofar as asserted against it (Mot. Seq. No. 005). The motions are consolidated for disposition. I. BACKGROUND AIG brought this action to recover payments it made to its insured, Donald J. Gogel, for property damage to Gogel’s residence which occurred on February 15, 2016, when a water pipe, located between the exterior wall of the residence and the interior wall of the master bathroom, froze and burst (NYSCEF Doc. No. 126). The pipe was attached to an exterior spigot, also known as a hose bib, that serviced an irrigation system for the 16th-floor terrace of the residence. When Gogel renovated the residence in 2013, he hired Clark as the general contractor. Clark, in turn, retained Donato to perform the plumbing work, including replacement of the spigot on the 16th-floor terrace and the installation of the pipe that allegedly burst. Clark hired Arqenta to perform the framing and drywall work, as well as the placement of insulation within the framing. AIG brought this action against Clark, Donato, and Arqenta, asserting one cause of action for negligence against all defendants based on their alleged failure to properly install and adequately insulate the plumbing involved in the incident, and one cause of action for breach of contract against them based on their alleged failure to perform the plumbing and construction work for the project in a workmanlike manner and in failing to properly protect the plumbing from freezing temperatures (Third Amended Complaint, NYSCEF Doc. No. 126). In addition, AIG asserts causes of action for contractual indemnification against Arqenta and Donato. Clark initiated a third-party action against Arqenta for contractual and common-law indemnification, contribution, and breach of contract for failure to procure insurance (Third-Party Complaint, NYSCEF Doc. No. 31). Clark also named Town & Gardens, Ltd. (Town) as a third-party defendant, alleging that Town was responsible for maintaining and winterizing the 16th-floor terrace’s irrigation system. By order, dated August 5, 2020, this court granted Town’s motion for summary judgment dismissing the third-party complaint insofar as asserted against Town on the ground that the maintenance contract between Town and Gogel specifically provided that Town was not responsible for winterizing the pipe or spigot involved in the incident (NYSCEF Doc. No. 116). II. DISCUSSION On a motion for summary judgment, the moving party bears the burden of making “a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; see Trustees of Columbia Univ. in the City of N.Y. v. D’Agostino Supermarkets, Inc., 36 NY3d 69, 73-74 [2020]). If the moving party fails to make such a showing, the motion must be denied “regardless of the sufficiency of the opposing papers” (Alvarez v. Prospect Hosp., 68 NY2d at 324; see Matter of New York City Asbestos Litig., 176 AD3d 506, 506 [1st Dept 2019]). However, where “the moving party proffers the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action” (Trustees of Columbia Univ. in the City of N.Y. v. D’Agostino Supermarkets, Inc., 36 NY3d at 74 [internal quotation marks and citations omitted]). On the motion, the “facts must be viewed in the light most favorable to the non-moving party” (Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks and citation omitted]). The court’s function on a motion for summary judgment is issue-finding rather than issue-determination (see Lebedev v. Blavatnik, 193 AD3d 175 [1st Dept 2021]; Genesis Merchant Partners, L.P. v. Gilbride, Tusa, Last & Spellane, LLC, 157 AD3d 479, 481 [1st Dept 2018]). The motion “should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable” (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 315 [2004]). A. Motion Sequence No. 003 1. Clark’s Motion a. Dismissal of the Third Amended Complaint insofar as asserted against Clark Clark argues that it is entitled to summary judgment dismissing the third amended complaint because AIG’s claims against it are barred by a waiver of subrogation clause in Gogel’s contract with Clark (the Gogel/Clark Agreement). Specifically, Clark contends that Gogel waived AIG’s right of subrogation against Clark by virtue of the following provision in the Gogel/Clark Agreement: Unless specifically precluded by the Owner’s property insurance policy, the Owner and Contractor waive all rights against (1) each other and any of their subcontractors, suppliers, agents and employees, each of the other; and (2) the Architect, Architect’s consultants and any of their agents and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance or other insurance applicable to the Work. (Gogel/Clark Agreement at §5.5, NYSCEF Doc. No. 127 [emphasis added]). Clark asserts that this waiver is triggered here because Gogel’s AIG property insurance policy does not “specifically preclude[]” the waiver, highlighting the following provision in the policy: If the insured person has rights to recover all or part of any payment we have made under this policy, those rights are transferred to us. The insured person must do nothing after loss to impair such rights of recovery. At our request, the insured person will bring suit or transfer those rights to us and help us enforce them. (AIG Policy, Part IV [D], NYSCEF Doc. No. 128 [emphasis added]). Clark argues that since its contract with Gogel contains a clear waiver of subrogation provision and the AIG policy does not forbid the waiver, AIG is barred from bringing this action against Clark. In opposition, AIG contends that Clark is not entitled to summary judgment based on the subrogation clause in the Gogel/Clark Agreement because the clause is not conditioned upon there being a provision permitting a waiver of subrogation in each of their insurance policies and because AIG did not issue a policy to Gogel in which AIG waived its subrogation rights. Therefore, AIG asserts, it should be allowed to maintain this subrogation action against Clark. “Subrogation, an equitable doctrine, allows an insurer to stand in the shoes of its insured and seek indemnification from third parties whose wrongdoing has caused a loss for which the insurer is bound to reimburse” (Nationwide Mut. Ins. Co. v. U.S. Underwriters Ins. Co., 151 AD3d 504, 505 [1st Dept 2017], quoting Kaf-Kaf, Inc. v. Rodless Decorations, 90 NY2d 654, 660 [1997]). An “insurer’s rights against a third party are derivative and limited to the rights the insured would have against that third party. Therefore, [an] insurer can only recover if the insured could have recovered and its claim as subrogee is subject to whatever defenses the third party might have asserted against its insured” (id. [internal quotation marks and citation omitted]). “While parties to an agreement may waive their insurer’s right of subrogation, a waiver of subrogation clause cannot be enforced beyond the scope of the specific context in which it appears” (Kaf-Kaf, Inc. v. Rodless Decorations, 90 NY2d at 660; see Admiral Indem. Co. v. Johnson, 189 AD3d 428, 428 [1st Dept 2020]; Allstate Indem. Co. v. Virfra Holdings, LLC, 124 AD3d 528, 528 [1st Dept 2015]). “Waiver of subrogation provisions reflect the parties’ allocation of the risk of liability whereby liability is shifted to the insurance carriers of the parties to the agreement” (Travelers Indem. Co. v. AA Kitchen Cabinet & Stone Supply, Inc., 106 AD3d 812, 813 [2d Dept 2013][internal quotation marks and citations omitted]). “Where a party has waived its right to subrogation, its insurer has no cause of action” (State Farm Ins. Co. v. J.P. Spano Constr., Inc., 55 AD3d 824, 825 [2d Dept 2008]). Here, Gogel and Clark waived “all rights” against each other “for damages caused by fire or other causes…to the extent covered by property insurance,” so long as such waiver is not “specifically preclude[d]” by Gogel’s property insurance policy. While the policy of insurance issued by AIG to Gogel provides that Gogel “ must do nothing after loss” to impair such rights, it does not preclude Gogel and Clark’s anti-subrogation agreement. Additionally, the policy “ acknowledge[s] the right of the insured to waive the insurer’s subrogation rights” (Kaf-Kaf, Inc. v. Rodless Decorations, 90 NY2d at 661) by allowing Gogel to relinquish his claims prior to the loss (see Travelers Prop. & Cas. Ins. Co. v. 23rd Street Prop., 2009 NY Slip Op 33391 [U], *1 [Sup Ct, NY County 2009][where insured's policy stated that "If the insured has rights to recover all or part of any payment we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after the loss to impair them," the court determined that "by the terms of the movants' policy the waiver of subrogation…is valid because the CGL policy allows the insured to relinquish its claims prior to the loss"][emphasis in original]; see generally State Farm Ins. Co. v. J. P. Spano Constr., Inc., 55 AD3d 824 [2d Dept 2008]). Contrary to AIG’s contention, the fact that the AIG policy does not contain a waiver of subrogation is not fatal under the circumstances because there is no language in the Gogel/Clark Agreement requiring that the parties’ insurance policies contain such a waiver. AIG additionally argues that its breach of contract claim against Clark is not barred by the waiver of subrogation clause because the waiver does not encompass contractual claims. However, even assuming the waiver applies only to tort-based liability, the breach of contract claim against Clark, essentially based upon Clark’s alleged negligence in the performance of its contract with Gogel, is “clearly within the scope of the waiver of subrogation clause and its preclusion of claims arising from a party’s tortious acts” (see Gap, Inc. v. Red Apple Companies, 282 AD2d 119, 125 [1st Dept 2001] ["the claims for breach of contract…are asserted, in our view, to circumvent the waiver of subrogation clause, whose provision apply, if at all, only to tort-based claim"]; Am. Motorist Ins. Co. v. Morris Goldman Real Estate Corp., 277 F Supp 2d 304, 309 [SD NY 2003] ["The Insurers here are attempting to bypass the precluded negligence claim by bringing a breach of contract claim"]; Farmington Casualty Co. v. 23d St. Props. Corp., 250 F Supp 2d 293, 298 [SD NY 1999] [plaintiff's breach of contract claim "appears to be an effort to dress its unavailing negligence claim in breach of contract clothing and, thereby, avoid dismissal"], affd by summary order sub nom. Farmington Cas. Co. v. Williams Real Estate Co., 225 F 3d 645 [2d Cir 2000]). Accordingly, the third amended complaint will be dismissed as against Clark. b. Dismissal of Cross Claims Against Clark Clark also moves for summary judgment dismissing all cross claims against it. The only cross claims asserted against Clark are those of Arqenta, which are contingent upon a finding of liability against Arqenta in the main action (Arqenta’s Answer to Third Amended Complaint, NYSCEF Doc. No. 52). For reasons discussed below, the court is dismissing the third amended complaint as against Arqenta. Accordingly, Arqenta’s cross claims against Clark will also be dismissed. c. Clark’s Cross Claims against Donato (i) Contractual 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” (Karwowski v. 1407 Broadway Real Estate, LLC, 160 AD3d 82, 87-88 [1st Dept 2018][quotation marks and citation omitted]). “When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” (Hooper Associates, Ltd. v. AGS Computers, 74 NY2d 487, 491 [1989]). Here, Clark and Donato executed a Subcontract Agreement Rider containing the following indemnification clause: 1. Indemnity. In consideration of the Contract Agreement, and to the fullest extent permitted by law, the Subcontractor shall defend and shall indemnify, and hold harmless, at Subcontractor’s sole expense, the Contractor, all entities the Contractor is required to indemnify and hold harmless, the Owner of the property, and the officers, directors, agents, employees, successors and assigns of each of them from and against all liability or claimed liability for…any and all property damage or economy damage, including all attorney fees, disbursements and related costs, arising out of or resulting from the Work covered by this Contract Agreement to the extent such Work was performed by or contracted through the Subcontractor or by anyone for whose acts the Subcontractor may be held liable, excluding only liability created by the sole and exclusive negligence of the Indemnified Parties. This indemnity agreement shall survive the completion of the Work specified in the Contract Agreement. (Subcontract Agreement Rider, NYSCEF Doc. No. 139 [emphasis added]).1 Clark maintains that in the event the court dismisses the complaint against it, it is still entitled to contractual indemnification from Donato in the form of reimbursement for all defense costs incurred by it in this action pursuant to the indemnification clause. However, Clark has not established that the damages in this case originated from, were incident to, or connected to the work performed by Donato so as to trigger the application of clause (see generally Maroney v. New York Cent. Mut. Fire Ins. Co., 5 NY3d 467, 472 [2005][construing the term "arising out of" to "mean originating from, incident to, or having connection with"]; see also Urbina v. 26 Ct. St. Assoc., LLC, 46 AD3d 268, 274 [1st Dept 2007]). Clark submits the affidavit of professional engineer, Yehoshua Gilad, who states that the water pipe which allegedly burst was intended to be active “only during the irrigation season — approximately from late April to early November” and that it was meant to be winterized for the remaining part of the year so as to “prevent [ ] potential damage due to pipe component freezing” (Gilad Affidavit at & 9, NYSCEF Doc. No. 224). He opines that the pipe was not winterized and “extremely cold, sub-freezing temperatures during mid-February 2016 caused the stagnant water in the irrigation pipe to freeze and subsequently rupture the pipe leading to the damage” (id. at & 21[e], [f]). Although he also maintains that Donato was negligent in not warning Clark that the pipe could freeze without winterization (id. at & 21[h]), Clark’s own Service Manager, Cleve Charles, testified that he was aware that the system needed to be winterized on an annual basis (Charles EBT Tr at 138-139, 197, NYSCEF Doc. No. 179). Thus, Clark fails to establish, as a matter of law, that the damage arose out of or resulted from the work performed by Donato.2 Accordingly, that branch of Clark’s motion for summary judgment on its cross claim for contractual indemnification against Donato will be denied. (ii) Breach of Contract for Failure to Procure Insurance Coverage Clark asserts that it is entitled to summary judgment on the issue of liability on its purported cross claim to recover damages for breach of contract for failure to procure insurance against Donato. However, Clark’s answer to the third amended complaint does not include a cross claim for breach of contract against Donato (see Clark’s Answer to Third Amended Complaint at & 19, NYSCEF Doc. No. 50). Accordingly, this branch of Clark’s motion will be denied (see Association for Community Reform Now (“ACORN”) v. Bloomberg, 52 AD3d 426, 427 [1st Dept 2008]; Dominguez v. Lafayette-Boynton Hous. Corp., 240 AD2d 310, 313 [1st Dept 1997]). 2. AIG’s Cross Motion to file a Fourth Amended Complaint AIG cross-moves for leave to amend the caption to include Gogel’s wife, Georgia Wall, as an additional subrogor and to add a cause of action against Clark for contractual indemnification. For the following reasons, the cross motion is denied. “As a general rule, leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit…, and the decision whether to grant leave to amend a complaint is committed to the sound discretion of the court” (Davis v. South Nassau Communities Hosp., 26 NY3d 563, 580 [2015][internal quotation marks and citations omitted]; see Brummer v. Wey, 187 AD3d 566, 566 [1st Dept 2020]). “Where there has been an extended delay in moving to amend, the party seeking leave to amend must establish a reasonable excuse for the delay” (Heller v. Louis Provenzano, Inc., 303 AD2d 20, 24 [1st Dept 2003][quotation marks and citation omitted]; see Schwenger v. New York Univ., 168 AD3d 443, 444 [1st Dept 2019]; B.B.C.F.D., S.A. v. Bank Julius Baer & Co. Ltd., 62 AD3d 425, 425 [1st Dept 2009]; Oil Heat Inst. of Long Is. Trust v. RMTS Assocs., 4 AD3d 290, 294 [1st Dept 2004]; Inwood Tower Inc. v. Summit Waterproofing & Restoration Corp.,., 290 AD2d 252, 252-253 [1st Dept 2002]). However, “[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side” (Edenwald Contr. Co. v. City of New York, 60 NY2d 957, 959 [1983] [internal quotation marks and citation omitted]). Here, there is no basis for AIG’s proposed contractual indemnification claim against Clark. As already determined, Gogel waived “all rights” against Clark “for damages caused by fire or other causes…to the extent covered by property insurance,” which is what AIG seeks to recover here. As to Wall, while the Gogel/Clark Agreement includes an indemnification provision pursuant to which Clark agreed to indemnify the “Owner” (Gogel/Clark Agreement at §8.12, NYSCEF Doc. No. 127), the agreement identifies the “Owner” as David Gogel, without mention of Georgia Wall. Therefore, AIG cannot, as subrogee of Wall, seek to enforce the indemnification provision against Clark. Moreover, AIG was aware of the facts underlying the proposed amendment to include Wall as an additional subrogor at the outset of this litigation. Yet the application is made without any explanation as to the lengthy delay — over 4 ½ years after the incident, over 4 years after the commencement of this action, and after the completion of discovery and the filing of the note of issue. Defendants would be prejudiced by such amendment because their motions for summary judgment have already been filed. Accordingly, AIG’s cross motion will be denied. B. Motion Sequence No. 004 1. Dismissal of the Third Amended Complaint insofar as asserted against Donato AIG’s negligence and breach of contract claims against Donato amount to allegations of negligence in the performance of Donato’s subcontract with Clark. Donato asserts that it is entitled to dismissal of these claims because it owed no duty of care to Gogel, a non-contracting third party. It also contends that all of AIG’s claims against it are barred by the waiver of subrogation provision in the Gogel/Clark Agreement. An independent contractor’s breach of a contractual obligation will generally not give rise to tort liability in favor of a non-contracting third party (see Stiver v. Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257 [2007]; Church v. Callanan Indus., 99 NY2d 104, 111 [2002]; Espinal v. Melville Snow Contrs., 98 NY2d 136, 138 [2002]). There are three exceptions to this general rule pursuant to which a party who enters into a contract to render services may be said to have assumed a duty of care — and thus be potentially liable in tort — to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely. (Espinal v. Melville Snow Contrs., 98 NY2d at140 [citation and internal quotation marks omitted]). Here, Donato established, and it is undisputed, that the second and third exceptions do not apply. Only the first exception is at issue — i.e., whether Donato created a duty by failing to exercise reasonable care in the performance of its duties, thereby “launch[ing] a force or instrument of harm” (Espinal v. Melville Snow Contrs., 98 NY2d at140). AIG is, in essence, claiming that Donato launched the instrument of harm that caused the damages to Gogel’s residence. In support of its position that it did not cause the flooding, Donato submits the expert affidavit of professional engineer, Terrence J. Fearon, who concludes that water discharge “was not caused by any actions or inaction on the part of…Donato” (Fearon Affidavit at & 23, NYSCEF Doc. No. 184). Fearon opines that the plumbing system at issue was code compliant and “effectively protected against freezing by the installation of proper interior isolation and drain valves to allow the system to be completely drained during times when the exterior temperatures were at or below freezing” (id. at & 19). Fearon states: It is standard custom and practice in the plumbing industry to utilize provisions to drain seasonal systems as an effective means of freeze protection. As is true with typical exterior hose bibbs, the 16th floor exterior hose bibb was a seasonal fixture that was not utilized throughout the year. A typical way of effectively protecting these seasonal fixtures from freezing is to install an interior isolation/drain valve to allow the system to be drained when the temperatures outside are at or below freezing. (id.). Fearon opines that if the system had been properly winterized, the 16th floor hose bibb and associated water supply line would not have frozen. Fearon also explains that it is typically the responsibility of the general contractor or the owner’s representative to notify the owner of necessary operational and maintenance requirements at the completion of the project — information the subcontractor typically conveys to the general contractor (id. at & 23). He notes that in this case, Donato informed the general contractor and the owner’s representative of the need to winterize the hose bibb and associated water supply line (id.). In this regard, Donato’s project manager, Zani Meta, testified that he informed Gogel’s representative, Chris McNally of Falcon Management, that the subject hose bibb and connected cold water pipe needed to be winterized (Meta EBT Tr at 141-143, 203, NYSCEF Doc. No. 133). In addition, Meta testified that Donato prepared a proposed service agreement for the Gogel residence which included winterizing the hose bibb and pipe, and that he gave the proposed service agreement to Clark so that it could be presented to Gogel, but that it was declined (id. at 248, 252). This testimony, in combination with Fearon’s expert affidavit, establishes that Donato did not cause the water discharge. In opposition, AIG fails to raise an issue of fact. AIG submits an attorney affirmation wherein its counsel asserts that there are issues of fact as to whether Donato created the condition that caused the damages (1) by installing a cold water pipe in an area subject to freezing temperatures in winter, (2) in failing to detect a hole in the same area which further allowed cold air to enter and caused the pipe to freeze and eventually burst, (3) by failing to install the pipe in a different location; (4) by failing to install heat tape on the pipe; and (5) by failing to advise Gogel to winterize the system. AIG offers no evidence rebutting the views and opinions advanced by Fearon in his expert affidavit. The opinions set forth in AIG’s attorney affirmation are conclusory and unsupported by an expert affidavit or any other evidence that would establish that Donato was negligent in the manner in which it installed the exterior hose bib or the associated water supply line. Further, as just noted, Donato submitted Meta’s deposition testimony establishing that Donato did, in fact, inform Gogel’s representative, McNally, of the need to winterize the system. AIG submits no evidence, such as an affidavit or deposition testimony from McNally, contradicting Meta’s testimony. While AIG asserts that the pipe at issue was installed in direct contradiction to “the mechanical engineer’s specifications,” because it was installed in an area that allowed for freezing temperature to enter inside the wall, AIG does not tender a copy of the specifications it claims contained such a provision. Nor does it submit evidence that any of the defendants were bound by such specifications. Moreover, Donato correctly maintains that AIG’s claims against it, including the claim for contractual indemnification, are barred by the waiver of subrogation clause in the Gogel/Clark Agreement, which as noted above, states that Unless specifically precluded by the Owner’s property insurance policy, the Owner and Contractor waive all rights against (1) each other and any of their subcontractors, suppliers, agents and employees, each of the other; and (2) the Architect, Architect’s consultants and any of their agents and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance or other insurance applicable to the Work. (Gogel/Clark Agreement, §5.5, NYSCEF Doc. No. 127 [emphasis added]). For reasons already discussed, AIG’s contentions in opposition to the applicability of the waiver are without merit. Accordingly, Donato is entitled to dismissal of the third amended complaint as against it. 2. Dismissal of Clark’s Cross Claims for Contractual Indemnification and Breach of Contract against Donato Given the expert affidavit and deposition testimony discussed above, Donato established prima facie that the damages at issue did not arise out of or result from the work performed by Donato. And, for reasons already discussed, Clark fails to raise an issue of fact in this regard. Accordingly, Clark’s cross claim for contractual indemnification against Donato will be dismissed. That branch of Donato’s motion which seeks to dismiss Clark’s alleged cross claim for breach of contract for failure to procure insurance will also be granted. As already noted, Clark did not assert such a claim in its pleadings (see Clark’s Answer to Third Amended Complaint at & 19, NYSCEF Doc. No. 50). C. Motion Sequence No. 005 Even though Arqenta’s motion for summary judgment is unopposed, it still must meet its prima facie burden of establishing its entitlement to judgment as a matter of law (Yonkers Ave. Dodge, Inc. v. BZ Results, LLC, 95 AD3d 774, 774-775 [1st Dept 2012] ["an unopposed summary judgment motion will be denied upon a movant's failure to establish prima facie entitlement to summary judgment"]; Exit Empire Realty v. Zilelian, 137 AD3d 742, 743 [2d Dept 2016]). 1. Dismissal of the Third Amended Complaint as against Arqenta AIG’s negligence and breach of contract claims against Arqenta amount to allegations of negligence in the performance of Arqenta’s subcontract with Clark. Arqenta establishes that as a sub-contractor, it owed no duty of care to Gogel, a non-contracting third party, and that none of the exceptions to the general rule apply (see generally Espinal v. Melville Snow Contrs., 98 NY2d 136). In this regard, Arqenta demonstrates that two of the exceptions do not apply because the terms of its agreement with Clark show that it did not entirely displace another party’s duty to safely maintain the premises, and there is no evidence that Gogel relied on Arqenta’s continued performance of its contractual duties. As to the remaining exception, the question is whether, in the alleged negligent performance of Arqenta’s contractual obligations, it launched an instrument of harm that caused the damages in this case. To support its position that it did not cause the flooding, Arqenta relies on the deposition testimony of Thomas Moroney, a co-owner and President of Arqenta (Moroney EBT Tr, NYSCEF Doc. No. 206). Moroney testified that Clark hired Arqenta to perform the framing and drywall work for the renovation, as well as the installation of Thermafiber Insulation on the perimeter walls of the residence (id. at 14, 18-20). Maroney explained that the purpose of this insulation installed by Arqenta was to keep cold air from entering the interior space of the residence (id. at 20, 31). That is, the insulation was intended to keep the rooms inside warm, not to keep pipes or outdoor fixtures from freezing. Maroney also testified that Arqenta was not involved in the plumbing and was not responsible for insulating any pipes (id. at 30-31). Along the same lines, Meta testified that Donato (not Arqenta) was responsible for furnishing and installing the insulation on the water line for the 16th floor terrace (Meta EBT Tr at 76-77, 112-113, NYSCEF Doc. No. 133). Arqenta also relies on Charles’s testimony (Clark’s Service Manager) that the insulation installed by Arqenta within the framing was intended to keep the cold air from entering the apartment (Charles’s EBT Tr at 118, 126, NYSCEF Doc. No. 132). Charles also testified that Arqenta had nothing to do with the installation or insulation of the pipe attached to the 16th floor hose bib (id. at 87). Thus, Arqenta established that it was not responsible for insulating the subject pipe. In addition, Arqenta points out that both Clark’s expert and Donato’s expert identify the failure to winterize the hose bib and water line as the cause of the incident. Arqenta contends, and it is undisputed that, it had no responsibility to perform the winterization or to notify Gogel or his representative that winterization was necessary. Finally, for the reasons discussed above, Arqenta correctly maintains that AIG’s claims against it, including the claim for contractual indemnification, are barred by the waiver of subrogation clause in the Gogel/Clark Agreement. Accordingly, the third amended complaint will be dismissed as against Arqenta. 2. Dismissal of Clark’s Cross Claims and the Third-Party Complaint Against Arqenta Clark asserts a cross claim against Arqenta sounding in contractual indemnification, common-law indemnification, and contribution (Clark’s Answer to Third Amended Complaint & 19, NYSCEF Doc. No. 193). In its third-party complaint, Clark also asserts causes of action against Arqenta for contractual indemnification, common-law indemnification and contribution, and breach of contract for failure to procure insurance (Third-Party Complaint, NYSCEF Doc. No. 31). Clark’s claims against Arqenta are not entirely contingent upon a finding of liability against Clark in the main action inasmuch as Clark is seeking contractual indemnification for defense costs from Arqenta. Therefore, the other claims asserted by Clark against Arqenta will be dismissed on the ground that the main action will be dismissed against Clark and for the reasons that follow, Arqenta is also entitled to summary judgment dismissing the claim for contractual indemnification asserted against it by Clark. Clark and Arqenta executed a Subcontract Agreement Rider containing the same indemnification clause as the one executed by Clark and Donato, which requires indemnification in cases where the damages arose out of or resulted from the work performed by Arqenta (Subcontract Agreement Rider at & 1, NYSCEF Doc. No. 33). Arqenta established that the damages at issue did not arise out of or result from the work it performed so as to trigger the application of the indemnification clause. Accordingly, all cross claims and the third-party complaint as against Arqenta will be dismissed. CONCLUSION In accordance with the foregoing, it is hereby ORDERED that Clark Construction Corporation’s motion for summary judgment is granted to the extent that the third amended complaint and all cross claim are dismissed as against it, and the motion is otherwise denied (Mot. Seq. No. 003); and it is further ORDERED that plaintiff’s cross motion for leave to serve a fourth amended complaint is denied (Mot. Seq. No. 003); and it is further ORDERED that Donato Inc.’s motion for summary judgment is granted and the third amended complaint and all cross claims are dismissed as against it (Mot. Seq. No. 004); and it is further ORDERED that Arqenta Inc.’s motion for summary judgment is granted and the third amended complaint, all cross claims, and the third-party complaint are dismissed as against it (Mot. Seq. No. 005). CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: June 10, 2021
