Mock v. New York Athletic Club of City of New York
Docket 74 CA 25-00248
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- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02500
- Docket
- 74 CA 25-00248
Appeal from an order granting summary judgment motions by third-party defendants and denying NYAC's motion for summary judgment on its contractual indemnification claim.
Summary
The Appellate Division, Fourth Department affirmed a Supreme Court order granting summary judgment to two third-party defendants and denying NYAC summary judgment on its indemnification claim. Plaintiff sued for injuries from a scaffold fall. The court held that Next Level was not contractually obligated to indemnify NYAC because the indemnity language covered only claims arising from Next Level's work and there was no evidence plaintiff’s injury related to Next Level’s work. The court also held that an indemnity agreement between NYAC and Anderson, signed after the accident, could not be applied retroactively because NYAC failed to show the parties intended an earlier effective date.
Issues Decided
- Whether Next Level Construction & Maintenance, Inc. was contractually required to indemnify NYAC for the plaintiff's scaffold injury under the parties' indemnity clause.
- Whether an indemnification agreement between NYAC and Anderson Courts and Sports Surfaces, Inc., executed after the accident, could be applied retroactively to require indemnification.
- Whether NYAC raised triable issues of fact to avoid summary judgment on those indemnification and breach-of-contract claims.
Court's Reasoning
The court applied the rule that contractual indemnity depends on the specific language of the contract and must reasonably reflect the parties' intent. Next Level's indemnity clause covered only claims arising out of Next Level's work, and Next Level showed Anderson (plaintiff's employer) did not work for Next Level and the injury did not arise from Next Level's work, so NYAC failed to show a factual dispute. As to Anderson, the indemnity agreement was signed after the accident and NYAC provided no evidence the parties intended the agreement to operate as of an earlier date, so retroactive application was improper.
Authorities Cited
- Gillmore v Duke/Fluor Daniel221 AD2d 938 (4th Dept 1995)
- Freas v John W. Danforth Co.236 AD3d 1371 (4th Dept 2025)
- Zuckerman v City of New York49 NY2d 557 (1980)
Parties
- Plaintiff
- Anthony M. Mock
- Defendant
- New York Athletic Club of City of New York
- Defendant
- Next Level Construction & Maintenance, Inc.
- Third-Party Defendant
- Anderson Courts and Sports Surfaces, Inc.
- Judge
- Amy C. Martoche
Key Dates
- Decision date
- 2026-04-24
- Order entered
- 2025-01-14
What You Should Do Next
- 1
Consider petition for leave to appeal
If NYAC believes this raises a substantial legal question, counsel can consider seeking leave to the New York Court of Appeals; prepare grounds showing conflict or significant legal issue.
- 2
Close litigation with Next Level and Anderson
Next Level and Anderson should confirm dismissal is final and move to resolve any remaining claims or costs related to them.
- 3
Assess plaintiff-directed exposure
NYAC should evaluate remaining exposure to the plaintiff and consider settlement strategy or further motions if appropriate.
Frequently Asked Questions
- What did the court decide?
- The appellate court affirmed summary judgment dismissing NYAC's indemnification claims against Next Level and Anderson and denied NYAC summary judgment against Anderson.
- Who is affected by this decision?
- NYAC is affected because its attempts to shift liability to Next Level and Anderson failed; Next Level and Anderson benefit from dismissal of indemnity and contract claims against them.
- Why couldn't NYAC make Anderson cover the accident?
- Because the indemnity agreement with Anderson was signed after the accident and NYAC presented no evidence the parties intended the agreement to be retroactive, so it cannot be applied to this injury.
- Can NYAC appeal further?
- Possibly to the Court of Appeals if leave is granted, but the Appellate Division's unanimous affirmance makes further review discretionary and would require showing an important question of law.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Mock v New York Athletic Club of City of New York - 2026 NY Slip Op 02500 Mock v New York Athletic Club of City of New York 2026 NY Slip Op 02500 April 24, 2026 Appellate Division, Fourth Department ANTHONY M. MOCK, PLAINTIFF, v NEW YORK ATHLETIC CLUB OF CITY OF NEW YORK, DEFENDANT-APPELLANT, AND NEXT LEVEL CONSTRUCTION & MAINTENANCE, INC., DEFENDANT. ----------------------------------------------------- NEW YORK ATHLETIC CLUB OF CITY OF NEW YORK, THIRD-PARTY PLAINTIFF-APPELLANT, NEXT LEVEL CONSTRUCTION & MAINTENANCE, INC., AND ANDERSON COURTS AND SPORTS SURFACES, INC., THIRD-PARTY DEFENDANTS-RESPONDENTS. Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department Decided on April 24, 2026 74 CA 25-00248 Present: Curran, J.P., Bannister, Smith, Ogden, And Delconte, JJ. GOLDBERG SEGALLA LLP, BUFFALO, MAURO LILLING NAPARTY LLP, WOODBURY (GLENN A. KAMINSKA OF COUNSEL), FOR DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-APPELLANT. SMITH MAZURE, P.C., NEW YORK CITY (LOUISE M. CHERKIS OF COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT NEXT LEVEL CONSTRUCTION & MAINTENANCE, INC. RICHARD S. POVEROMO, BUFFALO, FOR THIRD-PARTY DEFENDANT-RESPONDENT ANDERSON COURTS AND SPORTS SURFACES, INC. Appeal from an order of the Supreme Court, Erie County (Amy C. Martoche, J.), entered January 14, 2025. The order, inter alia, granted the cross-motion of third-party defendant Anderson Courts and Sports Surfaces, Inc. for summary judgment dismissing the amended third-party complaint against it. It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when he fell from a scaffold at defendant-third-party plaintiff New York Athletic Club of City of New York (NYAC). NYAC appeals from an order that, inter alia, granted the motion of defendant-third-party defendant Next Level Construction & Maintenance, Inc. (Next Level) insofar as it sought summary judgment dismissing NYAC's cross-claim against it for contractual indemnification, granted the cross-motion of third-party defendant Anderson Courts and Sports Surfaces, Inc. (Anderson) insofar as it sought summary judgment dismissing the amended third-party complaint against it, and denied NYAC's motion for summary judgment on its contractual indemnification cause of action against Anderson. We affirm. Initially, we conclude that Supreme Court properly granted Next Level's motion insofar as it sought summary judgment dismissing NYAC's contractual indemnification cross-claim against it. "[I]t is elementary that the right to contractual indemnification depends upon the specific language of the contract" ( Gillmore v Duke/Fluor Daniel , 221 AD2d 938, 939 [4th Dept 1995]; see Miller v Rerob , LLC , 197 AD3d 979, 981 [4th Dept 2021]). Thus, "[t]he language of an indemnity provision should be construed so as to encompass only that . . . which reasonably appear[s] to have been within the intent of the parties" ( Niagara Frontier Transp. Auth. v Tri-Delta Constr. Corp. , 107 AD2d 450, 453 [4th Dept 1985], affd 65 NY2d 1038 [1985]). Here, the indemnification agreement between NYAC and Next Level, by its terms, pertained to "claims . . . actually or allegedly arising out of or relating to [Next Level's] work or the work of any subcontractor retained by [Next Level]." Next Level established on its motion that Anderson, plaintiff's employer, did not work for Next Level, and that plaintiff's injuries did not arise out of and were not related to Next Level's work ( cf. Olivieri v Barnes & Noble , Inc. , 208 AD3d 1001, 1005 [4th Dept 2022]; see generally Orellana v 5541-1274 Fifth Ave. Manhattan LLC , 234 AD3d 527, 528 [1st Dept 2025]). In opposition, NYAC failed to raise a triable issue of fact ( see generally Zuckerman v City of New York , 49 NY2d 557, 562 [1980]). Contrary to NYAC's further contentions, we conclude that the court properly granted Anderson's cross-motion insofar as it sought summary judgment dismissing NYAC's contractual indemnification and breach of contract causes of action against it. There is no dispute that the indemnification agreement between NYAC and Anderson was executed after plaintiff's accident. "An indemnification agreement that is executed after a plaintiff's accident . . . may only be applied retroactively where it is established that (1) the agreement was made as of a date prior to the accident and (2) the parties intended the agreement to apply as of that prior date" ( Freas v John W. Danforth Co. , 236 AD3d 1371, 1372 [4th Dept 2025] [internal quotation marks omitted]; see Carpentieri v 1438 S. Park Ave. Co. , LLC , 215 AD3d 1236, 1238 [4th Dept 2023]; Tanksley v LCO Bldg. LLC , 196 AD3d 1037, 1039 [4th Dept 2021]). With respect to the contractual indemnification cause of action, Anderson met its initial burden on its cross-motion by establishing that it did not sign the agreement before the accident ( see generally Tanksley , 196 AD3d at 1039), and that the agreement was not made "as of" a date prior to the accident ( Manns v Norstar Bldg. Corp. , 4 AD3d 799, 800 [4th Dept 2004]), thus establishing that the agreement was not intended to be applied retroactively. In opposition, NYAC failed to raise a triable issue of fact. Indeed, NYAC submitted no evidence that Anderson and NYAC made the agreement as of a prior date, or that "the parties intended the agreement to apply as of [a] prior date" ( Freas , 236 AD3d at 1372 [emphasis added & internal quotation marks omitted]; see Meabon v Town of Poland , 108 AD3d 1183, 1185 [4th Dept 2013]). For the same reasons, the court properly determined that Anderson is entitled to summary judgment dismissing NYAC's cause of action for breach of contract for failure to procure insurance ( see Contreras v Mall 1-Bay Plaza , LLC , 213 AD3d 601, 601 [1st Dept 2023]; cf. Freas , 236 AD3d at 1373). Finally, we have considered NYAC's remaining contentions and conclude that they do not warrant reversal or modification of the order. Entered: April 24, 2026 Ann Dillon Flynn