568 F.Supp.3d 487
S.D.N.Y.2021Background
- On Dec. 17, 2018, plaintiff Viju Chacko slipped and fell in a landscaped bed/pathway in Costco’s Nanuet, NY parking lot and fractured her ankle.
- Curti’s Landscaping had a 2018 written services contract with Costco requiring weekly maintenance, seasonal pruning/thinning/trimming, bed cleanup, mulch replenishment, monthly inspections upon request, and an indemnity clause covering injuries "arising out of" services and breaches; the contract forbade oral modification.
- Curti’s performed weekly maintenance (April–November) and two seasonal prunings, but did not perform work on plant roots, did not remove the juniper at issue, and did not perform independent hazard inspections of bed islands.
- Costco performed routine parking-lot inspections but did not inspect landscaped beds for tripping hazards and did not request Curti’s to alter the area where the accident occurred.
- Curti’s produced a certificate of insurance naming Costco as an additional insured. Costco impleaded Curti’s asserting contractual indemnity, common-law indemnity, contribution, and breach of contract (failure to procure required insurance).
- The court granted Curti’s motion for summary judgment on all third-party claims: contractual indemnification, implied indemnity, contribution, and breach of contract.
Issues
| Issue | Costco's Argument | Curti’s Argument | Held |
|---|---|---|---|
| Contractual indemnification (does contract obligate Curti’s to indemnify Costco for Chacko’s injury?) | Curti’s breached its duty to “neatly maintain” shrubs/ground cover (left exposed root), causing the injury and triggering the indemnity clause. | "Neatly maintain" is aesthetic; contract duties (prune/trim/thin, rake, remove debris) do not require removal of roots or altering plant bases; no breach shown. | Grant: No reasonable jury could find the contract required removal of exposed roots; indemnity clause inapplicable. |
| Common-law (implied) indemnification | A jury could find Curti’s negligent in maintaining the landscaping, so implied indemnity is appropriate. | No evidence Curti’s was negligent or that it created/exacerbated the danger or otherwise exercised supervision/control over the injury-producing work. | Grant: Costco failed to show Curti’s negligence or that Curti’s assumed a tort duty (Espinal/"force of harm" not met). |
| Contribution | Costco seeks contribution if both parties share fault. | Contribution requires the defendant breached a duty to the injured person; Curti’s owed no such duty. | Grant (unopposed): Contribution inapplicable because Curti’s owed no duty to Chacko. |
| Breach of contract (insurance/additional insured) | Certificate of insurance is not conclusive proof of coverage; question remains whether Curti’s procured required insurance and named Costco as additional insured. | Curti’s produced the certificate and pointed to absence of contrary evidence; burden rests with Costco to show lack of required coverage. | Grant: Costco produced no evidence that Curti’s failed to procure required insurance; summary judgment for Curti’s. |
Key Cases Cited
- Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487 (1989) (indemnity obligations must be strictly construed)
- Espinal v. Melville Snow Contractors, 98 N.Y.2d 136 (2002) (contract performance can create tort duty where contractor creates/exacerbates a danger)
- Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 189 (1994) (contract can displace other party’s duty to keep premises safe)
- McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369 (2011) (principles governing implied indemnity)
- Raquet v. Braun, 90 N.Y.2d 177 (1997) (common-law indemnity grounded in restitution and prevention of unjust enrichment)
- Westmoreland Coal Co. v. Entech, Inc., 100 N.Y.2d 352 (2003) (contracts must be read as a whole; avoid undue weight to isolated phrases)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (movant may show absence of evidence to shift burden on summary judgment)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for summary judgment)