In this action, plaintiff, Denise Breslin, alleges that part of the wall of a walk-in freezer collapsed on her while she was at work. Plaintiff was an employee of Board of Cooperative [*2]Education Services Second Supervisory District of Suffolk County (BOCES). BOCES leased the subject school premises from North Babylon Union Free School District (the District). Approximately one month before the accident, Comfort Kool HVAC, Inc. and/or Comfort Kool HVAC Inc. (collectively, Comfort Kool), apparently pursuant to a contract with BOCES, had used concrete to patch the wall that fell on plaintiff.

Plaintiff commenced this action against Comfort Kool for negligence. Comfort Kool commenced a third-party action against BOCES and the District for contribution and common-law indemnification. BOCES counterclaimed against Comfort Kool and cross-claimed against the District for contribution, common-law indemnification, contractual indemnification, breach of contract, and failure to procure insurance. The District counterclaimed against Comfort Kool for common-law indemnification and contribution, and cross-claimed against BOCES for contribution, common-law indemnification, and contractual indemnification.

BOCES now moves for (1) summary judgment dismissing the third-party complaint and cross claims against it and (2) in effect, summary judgment in its favor on its counterclaim against Comfort Kool for contractual indemnification.^[FN1] The District and Comfort Kool oppose the motion.

On a motion for summary judgment, the movant has the burden to show, through evidence in admissible form (Bush v St. Clare's Hosp., 82 NY2d 738, 739; Zuckerman v City of New York, 49 NY2d 557, 562; Amica Mut. Ins. Co. v Kingston Oil Supply Corp., 134 AD3d 750, 751), that it is entitled to judgment as a matter of law and that there are no disputed issues of material fact (CPLR 3212; Matter of New York City Asbestos Litig., 33 NY3d 20, 25-26). If the movant meets its burden, then the non-movant must show that there is a material issue of fact to be resolved at trial (Matter of Eighth Jud. Dist. Asbestos Litig., 33 NY3d 488, 496). If the movant does not meet its burden, then the motion must be denied without consideration of any opposing papers (Vega v Restani Constr. Corp., 18 NY3d 499, 503). On summary judgment, the Court must view the evidence in the light most favorable to the non-moving party (id.).

Comfort Kool does not oppose dismissal of its third-party claims against BOCES for common-law indemnification and contribution. Accordingly, this branch of BOCES' motion is granted, and the third-party complaint is dismissed as against BOCES.

Turning to the District's cross claims, BOCES has shown that it cannot be liable in contribution or common-law indemnification because plaintiff, its employee, did not suffer a grave injury under Workers Compensation Law § 11 (Cashbamba v 1056 Bedford LLC, 168 AD3d 638, 639; McDonnell v Sandaro Realty, Inc., 165 AD3d 1090, 1097). In opposition, the District "does not dispute BOCES['] claim that plaintiff has not suffered a 'grave injury.'" Thus, so much of BOCES' motion as seeks summary judgment dismissing the District's cross claims against it for common-law indemnification and contribution is granted.

However, BOCES does not address the District's cross claim for contractual indemnification. The absence of a grave injury does not preclude this cross claim (Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427, 431-432; 76th & Broadway, LLC v Consolidated Edison Co. of NY, Inc., 168 AD3d 621, 622). Thus, so much of BOCES' motion as seeks dismissal of this cross claim is denied.

BOCES also seeks summary judgment in its favor on its contractual indemnification counterclaim against Comfort Kool. The contractual indemnification provision, contained in documents that appear to have been created by BOCES outlining bid terms for a contract of which Comfort Kool was apparently the successful bidder, states:

The vendor, individual or firm agrees to defend, indemnify, and hold harmless BOCES, its employees, respective officers, directors, employees, agents, successors and permitted assigns (each, a "BOCES Indemnitee"), from and against any and all claims, costs (including attorneys' fees), losses, liabilities, damages, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, claims or action or damages, costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or resulting from any third-party claim against any BOCES Indemnitee arising out of or resulting from Vendor's failure to comply with any of its obligations under this Specification and/or the entire contract agreement with BOCES, claims caused in whole or in part by the negligent and/or criminal acts or omissions of the individual or firm and all employees, officers, agents or directors of the individual or firm to the extent permissible by law, arising out of operations performed or services provided by the individual or firm under this contract.

The right to contractual indemnification depends on the specific language of a contractual indemnification provision (Errazuri v E Food Supermarket, Inc., 228 AD3d 732, 734; Alvarenga v Castagna Realty Co., Inc., 224 AD3d 648, 649). "Under New York law, the words 'arising out of' have broad significance, inclusive of 'incident to' or 'having connection with'" (Gamez v Sandy Clarkson LLC, 222 AD3d 482, 483 [citations omitted]). Nonetheless, General Obligations Law § 5-322.1 renders unenforceable the indemnification provision if it would, as written, indemnity BOCES for its own negligence (Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 794-795, rearg denied 90 NY2d 1008; see also Higgins v TST 374 Hudson, L.L.C., 179 AD3d 508, 511 [discussing section 5-322.1 in relation to an HVAC subcontractor]).^[FN2] "A court may render a [*3]conditional judgment on the issue of contractual indemnity," and to obtain such relief, "the [indemnitee] need only establish that it was free from any negligence and may be held liable solely by virtue of statutory or vicarious liability" (Jamindar v Uniondale Union Free School Dist., 90 AD3d 612, 616 [quotation marks, citations, ellipses, and alterations omitted]; see Pillco v 160 Dikeman St., LLC, 232 AD3d 918, 920; Winter v ESRT Empire State Bldg., LLC, 201 AD3d 844, 845; Spielmann v 170 Broadway NYC LP, 187 AD3d 492, 494; Jardin v A Very Special Place, Inc., 138 AD3d 927, 930-931; cf. 23 NY Jur 2d Contribution, Indemnity, & Subrogation § 135 [noting that the Appellate Division has not been entirely consistent in applying this rule]; Garcia v Soho AOA Owner, LLC, 234 AD3d 572, 574 [holding that indemnitees were "entitled to conditional summary judgment" on their claim for contractual indemnification, "notwithstanding that a factual issue exists as to their negligence"]).

For three reasons, BOCES failed to show that it is entitled to summary judgment in its favor on its contractual indemnification claim against Comfort Kool. Firstly, the bid documents containing the bid's terms, including the purported indemnification provision, have not been authenticated and, therefore, are inadmissible and cannot be considered (Dorset v 285 Madison Owner LLC, 214 AD3d 402, 403-404; Peranzo v WFP Tower D Co. L.P., 201 AD3d 486, 489 [in the context of a claim for contractual indemnification]; Garces v Windsor Plaza, LLC., 189 AD3d 539, 540 [in the context of a claim for contractual indemnification]; Fairlane Fin. Corp. v Greater Metro Agency, Inc., 109 AD3d 868, 870).^[FN3] The submitted deposition testimony did not mention the bid documents or indemnification provision at all, nor did BOCES submit any other evidence authenticating them.

Secondly, it is unclear whether the indemnification provision complies with General Obligations Law § 5-322.1. The provision is difficult to follow, owing in no small part to a grammatical error(s) that renders the provision vague and ambiguous on the issue of compliance with section 5-322.1. Again, the indemnification provision applies to claims

arising out of or resulting from any third-party claim against any BOCES Indemnitee arising [*4]out of or resulting from Vendor's failure to comply with any of its obligations under this Specification and/or the entire contract agreement with BOCES, claims caused in whole or in part by the negligent and/or criminal acts or omissions of the individual or firm and all employees, officers, agents or directors of the individual or firm to the extent permissible by law, arising out of operations performed or services provided by the individual or firm under this contract.

The last clause of that provision, on which BOCES relies in support of its motion — "arising out of operations performed or services provided by the individual or firm under this contract" — is not separated from the preceding clause by a conjunction. As it is written, the phrase "claims caused in whole or in part by the negligent and/or criminal acts or omissions of the individual or firm and all employees, officers, agents or directors of the individual or firm to the extent permissible by law, arising out of operations performed or services provided by the individual or firm under this contract" is unclear.^[FN4] It appears that the phrase "to the extent permissible by law" applies only to the clause that it ends, and not to the subsequent clause — an issue that is determinative here (see Brooks v Judlau Contr., Inc., 11 NY3d 204, 209-211; Sanchez v Triton Constr. Co., LLC, 184 AD3d 501, 502-503).^[FN5]

And even if the Court were to read the phrase "arising out of operations performed or services provided by the individual or firm under this contract" in isolation, that would not help BOCES. Read in isolation, that phrase violates section 5-322.1 because it leaves open the possibility that BOCES itself could be indemnified for its own negligence (see Itri Brick & Concrete Corp., 89 NY2d at 793-795; Rogers v Peter Scalamandre & Sons, Inc., 231 AD3d 1174, 1178-1179; Titov v V&M Chelsea Prop., LLC, 230 AD3d 614, 618-619). Indeed, as explained below, BOCES has not shown that it followed Comfort Kool's post-repair instructions, which potential failure certainly "aris[es] out of" Comfort Kool's operations. This potential failure also raises the possibility that BOCES could end up seeking indemnification for its own negligence (see Itri Brick & Concrete Corp., 89 NY2d at 793-795). Thus, given the unclarity of the indemnification provision, BOCES has not shown that it complies with section 5-322.1.

Thirdly, BOCES failed to show, as a matter of law, that it was not negligent (see Spielmann, 187 AD3d at 494; Arriola v City of New York, 128 AD3d 747, 749-750; Rodriguez v Tribeca 105, LLC, 93 AD3d 655, 657). BOCES failed to submit any deposition testimony or affidavits from any of its employees (other than plaintiff). Instead, it submitted, inter alia, transcripts of the depositions of plaintiff and Daniel Dickmann of Comfort Kool, who had performed repairs to the subject partition wall a month before the incident. Dickmann explained that there was a partition wall between the walk-in freezer and the walk-in refrigerator, and that "[t]here was ice forming inside the wall that was pushing the wall apart," and which caused cracks or holes in the wall. He repaired the wall with foam and a concrete skim coat. He informed BOCES to keep the freezer and refrigerator turned off to allow the repair to cure, and to turn them back on after a certain number of hours at the end of the day. Dickmann was also unable to find the source of the problematic ice that was forming — possibly a leak — because there was concrete above the freezer. Importantly, BOCES did not submit any expert evidence opining on Comfort Kool's repair.

BOCES failed to show that it followed Dickmann's instructions regarding keeping the freezer and refrigerator turned off so the repair could cure. Indeed, based on the evidence submitted by BOCES, it is entirely possible that Comfort Kool's repair was properly performed, but BOCES' failure to allow it to cure as per Comfort Kool's instructions resulted in plaintiff's incident. BOCES further failed to demonstrate that it was not responsible for a leak that was possibly causing the problematic ice to form in the first place. Concomitant with this failure, BOCES additionally failed to show either that there was no ice accumulation in the month after Comfort Kool's repairs, or that any subsequent ice accumulation did not cause or contribute to the partition wall's collapse. Again, based on the evidence that BOCES submitted, it is entirely possible that Comfort Kool performed the repair correctly, but that further leakage freezing into ice resulted in plaintiff's incident. Thus, BOCES failed to show that it was not negligent.

Accordingly, so much of its motion as seeks summary judgment in its favor on its counterclaim against Comfort Kool for contractual indemnification is denied. To the extent that the District or Comfort Kool seek any affirmative relief, they have not moved or cross-moved for any such relief.

This shall constitute the decision and order of the Court.