SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1381 

CA 15-00145 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, VALENTINO, AND DEJOSEPH, JJ. 

 

ZRAJ OLEAN, LLC AND ZAMIAS SERVICES, INC., 

PLAINTIFFS-APPELLANTS, 

V MEMORANDUM AND ORDER

 

ERIE INSURANCE COMPANY OF NEW YORK, RAYMOND 

WANGELIN, DOING BUSINESS AS ADAMS SEPTIC & 

SOUTHERN SUMMIT, AND NANCY J. WANGELIN, AS 

ADMINISTRATRIX OF THE ESTATE OF RAYMOND L. 

WANGELIN, DECEASED, DEFENDANTS-RESPONDENTS.

 

LAW OFFICES OF JOHN WALLACE, BUFFALO (JAMES J. NAVAGH OF COUNSEL), FOR

PLAINTIFFS-APPELLANTS. 

CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (THOMAS P. KAWALEC OF

COUNSEL), FOR DEFENDANT-RESPONDENT ERIE INSURANCE COMPANY OF NEW YORK.

AUGELLO & MATTELIANO, LLP, BUFFALO (JOSEPH A. MATTELIANO OF COUNSEL),

FOR DEFENDANTS-RESPONDENTS RAYMOND WANGELIN, DOING BUSINESS AS ADAMS

SEPTIC & SOUTHERN SUMMIT, AND NANCY J. WANGELIN, AS ADMINISTRATRIX OF

THE ESTATE OF RAYMOND L. WANGELIN, DECEASED. 

 

Appeal from a judgment (denominated order) of the Supreme Court,

Cattaraugus County (Michael L. Nenno, A.J.), entered August 27, 2014. 

The judgment, among other things, granted defendants’ cross motions

for summary judgment. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by denying the cross motion of

defendants Raymond Wangelin, doing business as Adams Septic & Southern

Summit, and Nancy J. Wangelin, as Administratrix of the Estate of

Raymond L. Wangelin, deceased, and reinstating the contractual

indemnification and failure to procure insurance causes of action in

the action under Index No. 76791; granting that part of plaintiffs’

cross motion for summary judgment with respect to the cause of action

for contractual indemnification in that action; denying the cross

motion of defendant Erie Insurance Company of New York in the action

under Index No. 80570; and granting that part of plaintiffs’ cross

motion for declaratory relief on the issue of the duty to defend and

entering judgment in favor of plaintiff Zamias Services, Inc. in the

action under Index No. 80570 as follows: 

It is ADJUDGED and DECLARED that defendant Erie

Insurance Company of New York is obligated to defend
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plaintiff Zamias Services, Inc. in the underlying action

from the date that such plaintiff was served with the

amended complaint in the underlying action, 

and as modified the judgment is affirmed without costs. 

Memorandum: Following a slip and fall on ice in a roadway at the 

Olean Center Mall, Brenda Johnson and Gary Johnson commenced an action

(hereafter, underlying action) against the mall owner, plaintiff ZRAJ

Olean, LLC (ZRAJ), and the mall’s property manager, plaintiff Zamias

Services, Inc. (Zamias), seeking damages for injuries sustained by

Brenda Johnson. Pursuant to a written Service Agreement, Southern

Summit Development by its owner, Raymond Wangelin, had agreed to

perform snow removal, sanding and salting services on behalf of

plaintiffs at the shopping mall during the period of time inclusive of

Brenda Johnson’s slip and fall. Raymond Wangelin, doing business as

Adams Septic & Southern Summit (hereafter, Southern Summit), died

during the pendency of the underlying action. Plaintiffs thereafter

commenced a third-party action against defendants Southern Summit and 

Nancy J. Wangelin, as Administratrix of the Estate of Raymond L.

Wangelin (hereafter, decedent’s estate), asserting causes of action

for contractual indemnification, common-law indemnification,

contribution and failure to procure insurance for ZRAJ as an

additional insured. Southern Summit moved for summary judgment

dismissing the second amended third-party complaint against it, and

Supreme Court granted the motion in part and dismissed the causes of

action for common-law indemnification and contribution on the ground

that Southern Summit owed no duty of care to the Johnsons, as

strangers to the Service Agreement, under any of the Espinal

exceptions (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140). 

Zamias subsequently commenced a declaratory judgment action

against defendant Erie Insurance Company of New York (Erie) and

decedent’s estate seeking a declaration that Zamias was entitled to a

defense and indemnification with respect to the underlying action as

an additional insured under the commercial general liability policy

issued by Erie to Southern Summit. The underlying action was settled

in January 2013. The court then consolidated the third-party action

and the declaratory judgment action. 

In response to two motions by Zamias for protective orders, Erie

cross-moved for summary judgment in the declaratory judgment action

seeking a declaration that it had no duty to defend or indemnify

Zamias. Plaintiffs cross-moved for summary judgment in the

declaratory judgment action seeking a declaration that Erie has a duty

to defend Zamias with respect to the underlying action, and they

sought summary judgment on the causes of action for contractual

indemnification from Southern Summit and failure to procure insurance 

for ZRAJ as an additional insured. Southern Summit and decedent’s

estate then cross-moved for summary judgment dismissing the causes of

action in the third-party action for contractual indemnification and

failure to procure insurance. 

By the judgment on appeal, the court granted the cross motion of
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Southern Summit and decedent’s estate and dismissed plaintiffs’ causes

of action in the third-party action for contractual indemnification

and failure to procure insurance. The court also granted Erie’s cross

motion in the declaratory judgment action and determined that Erie had

no obligation to defend or indemnify Zamias in the underlying action. 

The court further determined that Zamias’ motions for protective

orders and that part of plaintiffs’ cross motion for summary judgment

on their cause of action for failure to procure insurance were “moot.” 

Plaintiffs appeal. 

As a preliminary matter, we note that plaintiffs have abandoned

any contentions with respect to the motions for protective orders and

that part of their cross motion for summary judgment on their cause of

action for failure to procure insurance inasmuch as they have not

pursued any such issues in their brief (see Ciesinski v Town of

Aurora, 202 AD2d 984, 984). 

We agree with plaintiffs that the court erred in denying that

part of their cross motion for summary judgment seeking contractual

indemnification from Southern Summit and decedent’s estate and in

dismissing the cause of action for contractual indemnification. 

Initially, we note that the snow removal Service Agreement is not

subject to General Obligations Law § 5-322.1 (1) because it is not a

contract for “the construction, alteration, repair or maintenance of a

building, structure, appurtenances and appliances” (id.; see Pieri v

Forest City Enters., 238 AD2d 911, 912-913). With respect to the

language of the indemnification clause at issue, we note that the

Service Agreement provides that Southern Summit would indemnify

plaintiffs “from and against any and all occurrences, liability,

claims, damages . . . , expenses, fees, fines, penalties, suits,

proceedings, actions and causes of action of any and every kind

whatsoever arising or growing out of or in any way connected with the

work to be performed under [the] Agreement.” We conclude that the

unambiguous intent of that language was to provide for indemnification

even where plaintiffs have been negligent (see Gortych v Brenner, 83

AD3d 497, 498; Cortes v Town of Brookhaven, 78 AD3d 642, 644). We

further conclude that the unambiguous intent of the clause was also to

provide for indemnification even though Southern Summit was not

negligent (see Brown v Two Exch. Plaza Partners, 76 NY2d 172, 178;

Brooklyn Union Gas Co. v Interboro Asphalt Surface Co., 303 AD2d 532,

535, lv denied 100 NY2d 506). Thus, we conclude that the issue

whether the court’s earlier dismissal of the contribution and commonlaw indemnification causes of action in the third-party action against

Southern Summit and decedent’s estate, which we note was on Espinal

grounds, was entitled to collateral estoppel or res judicata treatment

with respect to Southern Summit’s negligence or performance under the

Service Agreement is irrelevant under the language of the

indemnification clause. We thus further conclude that the court erred

in denying that part of plaintiffs’ cross motion for summary judgment

on the issue of contractual indemnification and in granting the cross

motion of Southern Summit and decedent’s estate dismissing the cause

of action for contractual indemnification (see Brown, 76 NY2d 172,

178; see also Cortes, 78 AD3d at 644-645). We therefore modify the

judgment accordingly.
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CA 15-00145 

We also agree with plaintiffs that the court erred in granting

that part of the cross motion of Southern Summit and decedent’s estate

for summary judgment dismissing the cause of action for failure to

procure insurance for ZRAJ as an additional insured. The Service

Agreement provides that Southern Summit was obligated to maintain

insurance naming ZRAJ as an additional insured and Southern Summit

failed to establish that it met that obligation. Thus, we further

modify the judgment accordingly. 

We agree with Zamias that it was entitled to a defense as an

additional insured under Erie’s policy, beginning on the date upon

which Zamias was served with the amended summons and complaint in the

underlying action. We therefore further modify the judgment

accordingly. It is well settled that an insurer’s duty to defend is

“exceedingly broad” (Colon v Aetna Life & Cas. Ins. Co., 66 NY2d 6,

8). The fact that the amended complaint in the underlying action

alleged negligence on the part of plaintiffs, and not Southern Summit,

is of no consequence inasmuch as the allegations in the amended

complaint “[brought] the claim potentially within the protection

purchased” and triggered Erie’s duty to defend Zamias as an additional

insured (Regal Constr. Corp. v National Union Fire Ins. Co. of

Pittsburgh, PA, 15 NY3d 34, 37). 

Inasmuch as bodily injury liability coverage for an additional

insured under Erie’s policy, insofar as relevant herein, is provided

for injuries caused in whole or in part by the “acts or omissions” of

Southern Summit, we conclude on this record that Erie failed to make a

prima facie showing that the slip and fall in the underlying action

was not caused in whole or in part by the acts or omissions of its

named insured, Southern Summit (see generally Winegrad v New York

Univ. Med. Ctr., 64 NY2d 851, 853). Nor did Erie meet its burden with

respect to its claim of a storm in progress (see Schuster v Dukarm, 38

AD3d 1358, 1358-1359; see generally Winegrad, 64 NY2d at 853). We

likewise conclude that Zamias failed to make a prima facie showing

that Brenda Johnson’s slip and fall was caused in whole or in part by

the acts or omissions of Southern Summit (see generally Winegrad, 64

NY2d at 853). We therefore further modify the judgment by denying

those parts of the respective cross motions of plaintiffs and Erie on

the issue of indemnification under Erie’s policy.

Entered: December 31, 2015 Frances E. Cafarell

Clerk of the Court