Kiss v. Clinton Green North, LLC
- Lorna Schofield
- 1:17-cv-10029
- U.S. District Court · Southern District of New York
- 4
In Kiss v. Clinton Green North, LLC, Judge Schofield denied AvalonBay permission to file a late summary-judgment motion against Judy Painting.
AvalonBay’s request to file a summary-judgment motion against Judy Painting was denied; the order did not resolve the parties’ contractual indemnification dispute.
What happened
In Tibor Kiss v. Clinton Green North, LLC, AvalonBay asked for permission to seek summary judgment against Judy Painting Corp. over contractual indemnification. The request arose from injuries Kiss allegedly suffered after falling from a ladder while working at the property.
AvalonBay argued that a 2015 agreement required Judy Painting to defend and reimburse AvalonBay for claims and legal costs connected to Judy Painting’s work. AvalonBay relied on testimony from Judy Painting’s president about the agreement and the company’s continued performance under it.
Judge Lorna G. Schofield denied the request because it was filed too late under the court’s rule requiring pre-motion letters at least ten business days before the proposed conference. The order did not decide whether Judy Painting owed contractual indemnification.
The detailed version
- Kiss v. Clinton Green North, LLC · No. 1:17-cv-10029
- Lorna Schofield
- Dec. 16, 2019
Background
Tibor Kiss alleged that he was injured on September 12, 2017, when he fell from a ladder while working at the Avalon Clinton premises. The letter seeking permission to file a motion stated that Kiss was employed by Z&Z Services, Inc., which had been retained by Judy Painting Corp.
Clinton Green North LLC, Dermot Clinton Green LLC, and AvalonBay Communities, Inc., collectively referred to in the letter as “AvalonBay,” asked for permission to file a motion for summary judgment against Judy Painting for contractual indemnification. AvalonBay relied on an Operational Services Master Agreement dated October 9, 2015, and on deposition testimony from Zoltan Mihalyi, Judy Painting’s president.
AvalonBay argued that the agreement required Judy Painting to defend, indemnify, and hold AvalonBay harmless from claims and expenses arising from personal injuries related to Judy Painting’s work. It also argued that the agreement authorized recovery of attorney’s fees and court costs.
Ruling
The court denied the request to file the proposed summary-judgment motion. The court’s Individual Rule III.A.1 required pre-motion letters to be filed at least ten business days before the proposed conference. The court stated that it was first informed of AvalonBay’s request on November 26, 2019, and therefore found the request untimely.
The order did not grant or deny summary judgment and did not decide whether the Master Agreement required Judy Painting to indemnify AvalonBay. It denied only permission to file the proposed motion.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.