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Do Not Complain About What You Annex to Your Complaint

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  • Posted on: May 5 2023

By Jonathan H. Freiberger

Pursuant to CPLR 3014, inter alia, “[a] copy of any writing which is attached to a pleading is part thereof for all purposes.”  Where “a copy of the agreement is annexed to and made a part of the complaint, the rights and duties of the parties must be determined by the terms of the contract annexed to the complaint, and not by the plaintiff’s characterization or construction thereof in his pleading [because] [t]he rights of the parties thereunder must be determined by the terms of that instrument without the aid of such conclusions as the plaintiff has set up respecting its legal effect.”  Miglietta v. Kennecott Copper Corp., 25 A.D.2d 57, 58 (1st Dep’t 1966) (citation and internal quotation marks omitted); see also 805 Third Ave. Co. v. M.W.Realty Assoc., 58 N.Y.2d 447, 451 (1983) (citing, inter alia, Miglietta).

The import of CPLR 3014 was an issue, among others, addressed on May 2, 2023, by the Appellate Division, First Department, in Carey v. Toy Industry Ass’n TM, Inc., which, at its core, was a personal injury matter.  [Eds. Note: Some of the facts were obtained from the publicly available files on the Court’s NYSCEF system.]  The plaintiff in Carey, a carpenter, was injured when he slipped and fell.  Carey sued Toy Industry, which, in turn, brought a third-party complaint against Freeman Expositions, Inc. (“Freeman”) in which Toy Industry sought indemnity and contribution against Freeman for Carey’s injuries.  

Freeman moved for summary judgment dismissing the third-party claims.  In its motion, Freeman argued, among other things, that indemnification language from the contract between Toy industry and Freeman was inapplicable because the accident was caused by the negligence of “any other party not under Freeman’s direct control,” which was an exception to Freeman’s indemnification obligations under the contract.  The operative contracts were annexed as exhibits to the affidavit of Freeman’s counsel, and not a representative of Freeman with first-hand knowledge of the contracts.

Supreme court denied Freeman’s motion in a decision and order which, in its substantive entirety as it relates to Freeman’s motion, states: 

ORDERED that third-party defendant Freeman Expositions, Inc.’s motion for summary judgment is denied as the Freeman/TIA Contract and the TIA/NYCCOC License Agreement upon which it relies are not authenticated as required by CPLR 4518(a) and thus are inadmissible and cannot form the basis to grant summary judgment (Clarke v. American Truck & Trailer, 171 A.D.3d 405, 406 [1st Dep’t 2019] [holding agreement between parties, annexed to an attorney affirmation, was not authenticated and therefore was not admissible and not an appropriate basis on which to grant summary judgment])….

Freeman’s counsel then moved for renewal/reargument and that motion was denied.

On Freeman’s appeal, the Second Department “unanimously modified, on the law, to grant that portion of Freeman’s motion for summary judgment dismissing the common-law indemnification and contribution claims asserted against it, and otherwise affirmed.”  In so doing, the Court determined, among other things, that copies of the operative contracts were annexed to the third-party complaint, and stated:

The motion court should not have denied Freeman’s motion for summary judgment on the basis that its contract with third-party plaintiff Toy Industry Association, Inc. (TIA) was not in admissible form. The copy of the contract on which Freeman relied in support of its motion was annexed to TIA’s third-party complaint. The contract, therefore, was part of the complaint “for all purposes” (CPLR 3014), and facts admitted in the complaint constitute formal judicial admissions, and are conclusive of the facts admitted. Thus, TIA’s rights arise out of the contract annexed to its complaint and it is bound by the contract provisions. The contract was also admissible for the independent reason that TIA both did not object to its admissibility before the motion court (rather, plaintiff did) and relied on the same contract in support of its cross motion.  In view of the foregoing, we dismiss as academic Freeman’s appeal from the order denying its motion for leave to renew, the purpose of which was to tender the contract in admissible form to the motion court’s satisfaction.  [Some citations omitted, and internal quotation marks omitted.]

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

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