Jewish Board of Guardians v. Grumman Allied Industries Inc.

— Judgment, Supreme Court, New York County (Maresca, J.), entered April 20,1982 in favor of plaintiff Jewish Board of Guardians against defendants Grumman and Biuso for $206,898.47, plus interest and costs, making a total of $304,344.66, and adjudging that third-party defendant Auriga shall indemnify defendant and third-party plaintiff Biuso, is reversed, on the law, with costs; plaintiff’s 466 complaint against Grumman and Biuso is dismissed; and third-party plaintiff Biuso’s claim for indemnification against third-party defendant Auriga and third-party defendant Auriga’s claim for indemnification against defendant Grumman are dismissed, as moot. Appeal from order, Supreme Court, New York County (Egeth, J.), entered September 10, 1981, denying motion of defendant Grumman for leave to amend its answers is dismissed, without costs, as moot in view of the foregoing determination on the appeal from the judgment, and as subsumed in said judgment. Plaintiff Jewish Board of Guardians (hereinafter Owner) desired to construct a school building at Hawthorne, New York. The building was to be constructed by using individual modules or modular units which were to be manufactured away from the site and then transported to the site where the units would be placed on concrete foundations, then permanently aligned, and then a permanent roof was to be applied, i.e., “field applied.” Defendant Biuso was the architect; third-party defendant Auriga Building Corporation was the general contractor; defendant Grumman Allied Industries Incorporated was the subcontractor charged with the task of manufacturing and delivering the modular units. Grumman manufactured and delivered the modules to the site. But before the aligning of the modules or installation of the permanent roof had begun, there was a severe rainstorm and the modules suffered much damage from water. Thereupon, the owner sued the subcontractor Grumman and the architect Biuso for the damage. The architect claimed over against the general contractor Auriga. The jury rendered a verdict in favor of plaintiff against Biuso and Grumman, finding Grumman to be 90% negligent, Biuso 10% negligent, and Auriga not at all negligent. The parties submitted to the court questions of indemnification. The court held that Biuso was entitled to indemnification from Auriga, but that Auriga was not entitled to indemnification for its liability in turn from Grumman. We hold that neither Grumman nor Biuso is liable to plaintiff for this water damage. While all parties recognized the need for protecting these open modules from the weather, there was a clear and agreed-upon division of function and duty among them. Grumman contracted to manufacture and deliver the modules to the site, protecting them on the way. But, by article 22 of the specifications which formed part of the contracts, Auriga was under the obligation to “provide and install all necessary temporary protection to prevent the intrusion of the elements.” In accordance with this division of function and duty, once the modules were delivered, Auriga, the general contractor, removed the wrapping previously placed by Grumman, Auriga’s crane lifted the modules and placed them on the foundation, and then Auriga covered them with Visqueen, a plastic protection against elements, wrapping the modules from ground level up along the side of the modules, then along the top over the module, and then down the other side. Once the modules were delivered Grumman neither had nor undertook any duty to protect them from the elements; that was Auriga’s obligation. It is claimed that Grumman had a duty to give instructions to the general contractor on how to protect the modules from the elements. But the record is clear that the instructions that Grumman undertook to give were only those relating to erecting and installing the modules, not those relating to protection against the elements. Indeed, the briefs do not make clear what there is so esoteric about wrapping the modules to protect them against the elements so as to require special instructions on this point from the manufacturer to the general contractor. The remaining claims of failure by Grumman to perform fully were clearly shown to have no relation to the damage, e.g., the strips of plywood which were to be supplied by Grumman, could not be put in place in the joints until the modules had been aligned, work on which had not been begun yet; the roofing felt supplied by Grumman was not supposed to be protection against the elements; the failure 467 to cut the roofing plywood back did not prevent protection against the elements because the general contractor applied wooden blocks, which apparently took care of the problem. As to the claim against the architect Biuso, the architect was not retained to supervise the performance of the job. The contract explicitly provided: “The Architect shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and he shall not be responsible for the Contractor’s failure to carry out the Work in accordance with the Contract Documents.” (Owner and architect contract, par 1.1.14.) As we are dismissing plaintiff’s claims against the original defendants Grumman and Biuso, it follows that the claim of Biuso for indemnification against Auriga, and Auriga’s derivative claim for indemnification from Grumman (with respect to Auriga’s indemnification liability to Biuso) must also be dismissed as moot. Defendant Grumman also appeals from an order denying leave to amend its answers to allege an affirmative defense of waiver by the Owner. Although the action is in the name of the Owner, it is in reality a subrogation action prosecuted by and on behalf of the Owner’s insurer. Paragraph 11.3.1 of the General Conditions of the contract requires the Owner to maintain property insurance upon the entire work to “include the interests of the Owner, the Contractor, Subcontractors and Sub-subcontractors in the Work and shall insure against the perils of Fire, Extended Coverage, Vandalism and Malicious Mischief.” (The specifications define extended coverage “to cover loss or damage by storm or hurricane” [5. insurance by owner, a (5)].) The general conditions further provided that any insured loss is to be paid to the Owner as trustee for the insureds (par 11.3.3). And that: “The Owner and Contractor waive all rights against each other for damages caused by fire or other perils to the extent covered by insurance provided under this Paragraph 11.3, except such rights as they may have to the proceeds of such insurance held by the Owner as trustee. The Contractor shall require similar waivers by Subcontractors and Sub-subcontractors in accordance with Clause 5.3.1.5” (par 11.3.6). Clause 5.3.1.5 requires similar waivers as between the contractor and the subcontractors. And the specifications provide that: “The Owner, Contractor and all subcontractors waive all rights, each against the other, for damages caused by fire or other perils covered by insurance provided for under the terms of this article, except such rights as they may have to the proceeds of insurance held by the Owner as Trustee.” (5. insurance by owner, a [2].) Shortly before the trial defendant Grumman moved to amend its answers to allege as an affirmative defense this waiver as set forth in the general conditions. If defendant Grumman is correct, the waiver presents a question of law which may and fairly should be dispositive of the rights of all the parties, except the architect. The court denied the application for leave to amend on the ground that it was made too late. In view of our decision on the main appeal, the appeal from this determination becomes moot. Concur — Sullivan, J. P., Silverman and Bloom, JJ.