State of New York
Supreme Court : County of Monroe

Plaintiff,

- against -

Index No. 95/00467

Defendant.

_______________________________
The East Irondequoit School District,

Third-Party Plaintiff,
- against -

The Town of Irondequoit,

Third-Party Defendant.

_______________________________

MEMORANDUM DECISION

There are two distinct sets of motions and cross-motions before the court in this already much-litigated case. Plaintiff Karen Lugo allegedly slipped on packed snow and ice in the parking lot of the East Irondequoit High School on February 27, 1994. She had been attending a swimming program run by the Town of Irondequoit. The High School had been closed for February break, and because school was not in session the School District had not plowed the lot during the previous two weeks.

Ms. Lugo sued both the School District and the Town of Irondequoit. In an earlier motion this court denied a motion by the Town for dismissal of the complaint as against itself, holding that there were questions of fact as to the Town's knowledge of the conditions to which participants in its recreation programs were exposed. That decision was reversed by the Appellate Division.

After the Town was let out of the case the School District commenced a third-party action. The basis for that action is a provision in the municipal cooperation agreement between Town and District which required the Town to name the District as an additional insured in its liability policy.

At this point the defendant School District has moved for summary judgment in the main action, and the plaintiff has cross-moved to dismiss certain of the District's affirmative defenses. The third-party defendant Town then moved to sever the third-party action, and the third-party plaintiff cross-moved for summary judgment on the third-party complaint.

Summary judgment motion in main action:

Plaintiff rightly points out that under the recent amendment to CPLR 3212(a) the present summary judgment motion, made more than 120 days after the note of issue was filed, is untimely and must be dismissed.

The defendant's motion is without merit in any event. The District argues that the plaintiff has failed to show constructive notice that the parking lot was snow-covered, because the weather records submitted were from the Greater Rochester International Airport, some miles from the High School.

At oral argument defendant's counsel agreed that, if the court were to accept his argument, all weather records would be inadmissible unless the event in question occurred at the weather station itself. This is absurd. The plaintiff's statements confirm there was snow on the ground. The weather records show freezing temperatures for the entire week before the accident, and on three of the five days before February 27 more than five inches of snow fell at the airport. The next day, February 28, the District plowed the parking lot. To insist, as the District does, that the plaintiff is asking the court to "speculate" that the lot was snow-covered is to fly in the face of both logic and experience. The plaintiff has provided more than enough evidence to withstand a summary judgment motion on this issue, which is clearly one of fact for the jury.

The plaintiff has cross-moved to dismiss the fourth, fifth, sixth, eighth and ninth of the District's defenses. (Such motions under CPLR 3211 [b] are not subject to the 120-day limit.) There has been no opposition to this cross-motion and the Court grants the requested relief.

Third-party motions

Although the third-party defendant first moved to sever the third-party action, a course usually looked upon with favor, the court finds that the cross-motion made by the District is dispositive, and the motion to sever is thereby mooted.

The Town does not deny the District's contention that it was obligated to name the District as an additional insured under the municipal cooperation agreement. Nor is there any proof or argument from the Town in response to the District's statement that no such coverage was in force at the time of the accident. It raises instead two defenses, one of laches and one of contract interpretation.

(There is a third defense directed at the third-party complaint's cause of action for contractual indemnification, a cause of action the District admits is untenable and which is deemed withdrawn.

Under the circumstances of this case, where the Town was until recently a co-defendant, the court declines to invoke the equitable doctrine of laches. Dismissal on this basis is discretionary with the court and is only called for in the most egregious of circumstances.

The remaining issue between Town and District is the scope of the insurance coverage required by the agreement. The Town has submitted an affidavit from a former Town official, stating that the understanding between the parties was that only claims arising in facilities such as swimming pools and classrooms were to be covered by the Town.

Such extrinsic evidence, however, is only admissible if the contract language itself is ambiguous. Interpretation of an unambiguous contract is a question of law for the court -- as is the question of whether or not the language is ambiguous in the first place -- and the court finds, contrary to the Town's position, that the agreement's language is clear and expansive. Under the agreement the Town is required to insure against liability arising in any way from "or related to participation in or the operation of the program or the use of the facilities or other district premises or property in the program." (For its own reasons the Town's brief emphasizes the words "property in the program", although this is not a grammatically separable unit.) The Town also stresses the fact that, in the agreement, "facilities" is defined as "buildings, gymnasia, a swimming pool, athletic fields, playgrounds and facilities appropriate for social center purposes." The Town insists that under this definition there is no obligation to insure against injuries in the parking lot.

This interpretation would severely limit the expansive language "in any way arising from or related to participation in or the operation of the program or the use of the facilities or other district premises or property". Moreover, it would leave "or other district premises or property" as a meaningless appendage. The agreement's definition of "facilities" comprehends all those locations mentioned by the Town and to which the Town wants to limit its obligation. By adding "other district premises or property" the parties clearly intended to expand that list. The plain language meaning of "premises" encompasses parking lots, lawns and walkways, and is thus entirely consistent with the District's interpretation. Nor is the phrase "in the program" to be construed as a limitation on the scope of the coverage, given the broad language "in any way arising from or related to participation in *** the program".

The contractual language is clear, broad and comprehensive, and should not be limited by the selective interpretation given it by the Town or by the irrelevant affidavit it submitted. The Town was obliged to insure the District against precisely the type of accident alleged here, and is required to bear the costs of the District's defense as well as to indemnify the District.

Counsel for the plaintiff may prepare the order, with costs payable by the District to the plaintiff but none from the Town to the District.

April 25, 1997

Andrew V. Siracuse, J.S.C.