Newland <strong>v</strong>. County Waste & Recycling Serv., Inc.

Newland v County Waste & Recycling Serv., Inc. -
2026 NY Slip Op 04467
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Newland v County Waste & Recycling Serv., Inc.
2026 NY Slip Op 04467
July 16, 2026
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Patrick Newland, Plaintiff-Respondent,
v
County Waste and Recycling Service, Inc., Defendant and Third-Party Plaintiff-Appellant-Respondent; E.J. Transport, LLC, Third-Party Defendant-Respondent-Appellant.
Decided and Entered:July 16, 2026
CV-25-0771
Calendar Date: May 27, 2026
Before: Aarons, J.P., Pritzker, Ceresia, Fisher And Mcshan, JJ.
Perry, Van Etten, Rainis & Kutner, LLP, Melville (Joseph K. Strang of counsel), for defendant and third-party plaintiff-appellant-respondent.
O'Connor, O'Connor, Bresee & First, PC, Albany (Joseph T. Perkins of counsel), for third-party defendant-respondent-appellant.
Proner & Proner, New York City (Lawrence B. Goodman, New York City, of counsel), for plaintiff-respondent.
[*1]
McShan, J.
Cross-appeals from an order of the Supreme Court (James Walsh, J.), entered April 16, 2025 in Saratoga County, which (1) denied defendant's motion for summary judgment dismissing the amended complaint, (2) denied defendant's cross-motion for summary judgment on its third-party claims for breach of contract and contractual indemnification, and (3) partially denied third-party defendant's motion for summary judgment dismissing the third-party complaint.
Defendant is the owner of a waste facility transfer station in the Town of Fort Ann, Washington County. Pursuant to a 2020 agreement (hereinafter the hauling agreement), defendant subcontracted third-party defendant to haul waste from the facility using third-party defendant's trucks and trailers. In January 2022, plaintiff — an employee of third-party defendant — reported to defendant's facility to transport a trailer of waste to a landfill. As he was performing an inspection of the trailer, which had been loaded with waste prior to plaintiff's arrival, plaintiff noticed that the tarp used to cover the trailer was rolled up, and the nylon straps of the tarp were not hanging over the back of the trailer. Plaintiff climbed up the trailer and discovered that the straps were covered by waste that was loaded in the back of the trailer, prompting him to climb into the trailer and attempt to pull one of the straps free. However, while doing so, the strap became dislodged, and plaintiff lost his balance and fell off the trailer, sustaining several significant injuries from the fall.
Plaintiff thereafter commenced this action against defendant,
FN1
alleging, among other things, that defendant was negligent in loading the trailer and failing to properly secure the load. Defendant answered plaintiff's complaint and commenced a third-party action against third-party defendant, asserting claims for, as relevant here, breach of contract and contractual indemnification predicated on certain language in the hauling agreement requiring third-party defendant to procure certain insurance policies and to indemnify defendant under certain circumstances.
Third-party defendant later moved for summary judgment, seeking dismissal of the third-party complaint. Relevant here, third-party defendant argued that it was entitled to summary judgment, dismissing defendant's third-party claims for breach of contract and contractual indemnification, because it satisfied its contractual obligation to procure insurance on behalf of defendant, and it was not required to indemnify defendant under the terms of the hauling agreement. Defendant cross-moved for summary judgment on its third-party claims for breach of contract and contractual indemnification. Defendant also moved for summary judgment dismissing plaintiff's amended complaint, contending that it did not owe plaintiff a duty of care and that any alleged negligence of defendant was not the proximate cause of plaintiff's injuries. Supreme Court denied defendant's motion for summary
[*2]
judgment dismissing the amended complaint, denied that portion of third-party defendant's motion seeking dismissal of the third-party breach of contract and contractual indemnification claims and denied defendant's cross-motion seeking summary judgment on those same claims. Defendant appeals, and third-party defendant cross-appeals.
We turn first to defendant's contention that Supreme Court erred in declining to dismiss plaintiff's amended complaint. Defendant contends that it did not owe a duty of care to plaintiff, and, in any event, defendant's actions were not the proximate cause of plaintiff's injuries. "It is well settled that[,] on a motion for summary judgment, the movant must establish its prima facie entitlement to judgment as a matter of law by presenting competent evidence that demonstrates the absence of any material issue of fact" (
Alexander v Rippe
,
248 AD3d 1374
, 1375 [3d Dept 2026] [internal quotation marks, brackets and citations omitted];
see
Schaffer v State of New York
,
237 AD3d 1334
, 1335 [3d Dept 2025]). "Only upon such a showing will the burden shift to the opposing party to demonstrate the existence of a material issue of fact" (
Nusbaum v 1455 Wash. Ave., LLC
,
240 AD3d 1113
, 1114 [3d Dept 2025] [citations omitted]). "When considering a motion for summary judgment, courts must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (
Matter of First United Methodist Church in Flushing v Assessor, Town of Callicoon
,
230 AD3d 885
, 886 [3d Dept 2024] [internal quotation marks and citations omitted],
affd
45 NY3d 361
[2025];
see
Lorica
v Krug
,
195 AD3d 1194, 1195
[3d Dept 2021]).
"In a negligence action, a plaintiff must prove that a defendant owed a duty, breached that duty and that the breach was the proximate cause of the injuries complained" of (
Reese v Raymond
Corp.
,
202 AD3d 1304,
1307
[3d Dept 2022] [internal quotation marks and citations omitted]). Relevant here,"[t]he existence and scope of [a] duty is a legal question for the courts to determine by analyzing the relationship of the parties, whether the plaintiff was within the zone of foreseeable harm, and whether the accident was within the reasonably foreseeable risks" (
Butler v Vestal Parkway Plaza, LLC
,
239 AD3d 1177
, 1178 [3d Dept 2025] [internal quotation marks, brackets and citations omitted];
see Brown v University of Rochester
,
216 AD3d 1328, 1331
[3d Dept 2023]). "A critical consideration in determining whether a duty exists is whether the defendant's relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm" (
Davis v South Nassau Communities Hosp.
,
26 NY3d 563, 572
[2015] [internal quotation marks and citation omitted];
see Cuomo v State of New York
,
240 AD3d 21
, 27 [3d Dept 2025]).
In support of its motion, defendant submitted, among other
[*3]
things, the testimony of Jeffrey Burrier, a division landfill manager for Waste Connections — the parent company for defendant — who explained that third-party defendant provided all trailers for defendant at the transfer station during the relevant time frame in this case. Both Burrier's and plaintiff's respective deposition testimony confirmed that the trailer at issue in this case was a "drop and hook" pickup, which entailed the drop of an empty trailer for a trailer that had been prefilled by defendant's employees. Burrier further explained that the trailers are equipped with an industry-standard "crank type tarping system" that allows for the tarp, positioned on the top of the trailer on one side, to be unfolded manually. Burrier maintained that it is not defendant's role to tarp the trailers, which was confirmed by the deposition testimony of Eugene Fiocco III, the owner of third-party defendant. On that, Burrier confirmed that defendant's employees would occasionally drape the tarp on the trailer over the waste for "litter control only," depending on the conditions of the day and whether there is wind, but even in those circumstances they did not secure or inspect the tarp for transport purposes. The tarps are equipped with straps that, when rolled out properly, hang over the side of the trailer opposite the crank system, where they are ultimately secured by third-party defendant's drivers. Further, when the tarps are rolled up into the crank system, the straps roll up inside the tarp. However, as testified to by plaintiff, those same straps can get caught under the weight of the load inside the trailer if the person who rolls the tarp up does it incorrectly.
Defendant's proof established that it is solely responsible for loading the trailers with waste, and that is particularly so in the case of a "drop and hook" pickup, which occurs prior to the trailer being picked up and is undertaken without observation by the driver. To that end, in this case, the carrier and the injured party are one and the same and the danger that arose from the improper loading implicated plaintiff's obligation, as the driver, to ensure that the trailer was properly covered before transport (
see generally
Vehicle and Traffic Law § 380-a [1]), which required him to pull out the straps that were buried. In the situation presented, it was defendant who was in the best position to protect against the potential harm from improper loading, thereby creating a duty to prevent the foreseeable risks from a breach of that duty (
see generally Davis v South Nassau Communities Hosp.
,
26 NY3d at 572
;
Cuomo v State of New York
, 240 AD3d at 27;
Southern Tier Crane Servs., Inc. v Dakksco Pipeline Corp.
,
149 AD3d 1303
, 1304 [3d Dept 2017]). Defendant's attempt to shift liability for these injuries to plaintiff — an employee of the carrier — is misguided (
cf. Sprague v Louis Picciano, Inc.
,
100 AD2d 247, 251
[3d Dept 1984],
lv denied
62 NY2d 605
[1984]). Accordingly, we find that defendant's
[*4]
proof was insufficient to meet its prima facie burden that it owed no duty to plaintiff.
As to the question of proximate cause, resolution of that issue generally falls within the province of the finder of fact, notwithstanding those occasions "where only one conclusion may be drawn from the established facts" (
O'Keefe v Wohl
,
184 AD3d 1046, 1047
[3d Dept 2020] [internal quotation marks and citation omitted];
see Southern Tier Crane Servs., Inc. v Dakksco Pipeline Corp.
, 149 AD3d at
1305). That is not the case here. The sum and substance of defendant's contentions posit that its employees' loading of the trailer merely gave rise to the occasion for plaintiff's injury, but was not the cause, emphasizing that there is no evidence that defendant loaded the trailer improperly and that any issues with the straps on the tarp were due to third-party defendant's negligence. On the first point, defendant's suggestion that there is no proof that it improperly loaded the trailer overlooks Burrier's admission that defendant's employees bore the sole responsibility for loading the trailers with waste, as well as plaintiff's testimony — afforded a favorable inference on defendant's motion — that he encountered the buried straps while inspecting the trailer at pickup, causing him to undertake the task of releasing them before he could depart. Moreover, any argument that there are gaps in the proof regarding which party caused the straps to be caught in the trailer would not entitle defendant to summary judgment on that issue (
see generally Umoh v Doolity-Mills
,
214 AD3d 1226, 1227-1228
[3d Dept 2023];
Howard v A.O. Smith Water Prods.
,
212 AD3d 924, 924-925
[3d Dept 2023]).
On defendant's argument that plaintiff's decision to try and remove the straps from underneath the loaded waste, and the manner in which he undertook that task, severed the causal connection from the improper loading, we do not find such actions were "so extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from [defendant's] conduct, that it breaks the chain of causation" (
Lans v Farnam
,
239 AD3d 1180
, 1184 [3d Dept 2025] [internal quotation marks and citations omitted];
see Dunham v Ketco, Inc.
,
135 AD3d 1032, 1035-1036
[3d Dept 2016]). To the contrary, plaintiff could not depart with the trailer until the straps were secured, and the manner in which he did so more properly implicates whether he bears some degree of comparative fault for his injuries, an inquiry that is better left to the factfinder in this case (
see Bynum v Camp Bisco, LLC
,
198 AD3d 1164, 1167
[3d Dept 2021];
see also Devanny v Cook
,
247 AD3d 1300
, 1303 [3d Dept 2026]). We therefore find that there are triable issues of fact with respect to proximate cause precluding dismissal of plaintiff's negligence cause of action at this stage (
see generally Brumm v St. Paul's Evangelical Lutheran Church
,
143 AD3d 1224, 1227
[3d Dept 2016];
compare Avina v Verburg
, 47
[*5]
AD3d 1188, 1189 [3d Dept 2008]).
Turning to the competing arguments on appeal from defendant and third-party defendant with respect to defendant's breach of contract claim, "[a] cause of action for breach of contract requires that the plaintiff show the existence of a contract, the performance of its obligations under the contract, the failure of the defendant to perform its obligations and damages resulting from the defendant's breach" (
Liberty Mut. Ins. Co. v PMI Newco, LLC
,
225 AD3d 941
, 942-943 [3d Dept 2024] [internal quotation marks and citations omitted];
see Quest Diagnostics Inc. v CSRNC, LLC
,
248 AD3d 1474
, 1475 [3d Dept 2026]). "The failure . . . to comply with a contractual insurance procurement provision constitutes a material breach of contract" (
EDW Drywall Constr., LLC v U.W. Marx, Inc.
,
189 AD3d 1720, 1722
[3d Dept 2020] [citations omitted]).
The third-party complaint sets forth a cause of action against third-party defendant for breach of contract, alleging that third-party defendant failed to purchase insurance for the protection of defendant pursuant to the hauling agreement. Relevant here, the "Insurance" section of the hauling agreement requires that third-party defendant "maintain, at its sole cost and expense, . . . Commercial General Liability Insurance with bodily injury and property damage limits of not less than $2,000,000 each occurrence and $2,000,000 general aggregate and completed operations aggregate" and "Automobile Liability insurance with limits of not less than $2,000,000 combined single limit." That section of the hauling agreement further provides that third-party defendant "shall . . . ensure that [defendant] shall be shown as an additional insured under each" of the foregoing insurance policies. However, the general liability and umbrella liability policies obtained by third-party defendant, and submitted in support of its motion, named Waste Connections as an additional insured thereon rather than defendant. Although third-party defendant produced proof that defendant is a wholly owned subsidiary of Waste Connections, the hauling agreement expressly required third-party defendant to name defendant, specifically, as an additional insured. To that, third-party defendant's insistence that its failure to properly identify defendant as an additional insured was solely due to a scrivener's error does not excuse the breach of that obligation under the hauling agreement, particularly since the additional insured rider provides no indication that coverage would extend to defendant, which, although operating as a subsidiary of Waste Connections, is a distinct legal entity (
see JPMorgan Chase Bank, N.A. v Malarkey
,
65 AD3d 718, 721
[3d Dept 2009];
see also Connecticut Gen. Life Ins. Co. v Superintendent of Ins. of State of N.Y.
,
10 NY2d 42, 50
[1961]).
To the extent that third-party defendant argues that it cannot be held liable for breach of contract because the insurance company ultimately disclaimed coverage for
[*6]
plaintiff's incident under an auto exclusion rather than the error in naming the proper party as an additional insured, we note that declination of coverage is not essential to a determination that a party breached its obligation to procure insurance (
see Grala v Structural Preserv. Sys., LLC
,
242 AD3d 1181
, 1184 [2d Dept 2025],
appeal & lv dismissed
45 NY3d 958
[2026]), nor is a party required to demonstrate actual damages as part of a breach of contract claim (
see Connaughton v Chipotle Mexican Grill, Inc.
,
29 NY3d 137, 143
[2017];
Perry v McMahan
,
164 AD3d 1488
, 1489-1490 [2d Dept 2018]). Thus, the disclaimer of coverage is relevant to defendant's entitlement to damages, either actual or nominal — not to whether a breach occurred in the first instance (
see generally Kronos, Inc. v AVX Corp.
,
81 NY2d 90, 95
[1993]). As to defendant's arguments on appeal positing that it should be granted summary judgment on its breach of contract cause of action, its failure to support its cross-motion with the insurance policies actually procured by third-party defendant would ordinarily be fatal to the requirement that it demonstrate third-party defendant's breach (
see
Clyde v Franciscan Sisters of Allegany, N.Y., Inc.
,
217 AD3d 1353, 1355
[4th Dept 2023];
Breland-Marrow v RXR Realty, LLC
,
208 AD3d 627, 629
[2d Dept 2022]). However, noting that the foregoing facts are derived directly from third-party defendant's motion seeking dismissal of the same cause of action, which included the relevant policies, we exercise our authority to search the record (
see
CPLR 3212 [b];
Estrella v BMG Monroe I, LLC
,
248 AD3d 736
, 738 [2d Dept 2026]) and grant defendant partial summary judgment with respect to the issue of a breach stemming from third-party defendant's failure to name defendant as an additional insured (
see
Campanale v Towne Plaza Mastic Realty, LLC
,
242 AD3d 818
, 819 [2d Dept 2025];
DiBuono v Abbey, LLC
,
83 AD3d 650, 652
[2d Dept 2011];
compare Olivieri v Barnes & Noble, Inc.
,
208 AD3d 1001, 1006-1007
[4th Dept 2022]).
Turning finally to third-party defendant's contention that Supreme Court erred in denying that part of its motion seeking dismissal of defendant's contractual indemnity cause of action, "[a] party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances" (
Morin v Heritage Bldrs. Group, LLC
,
211 AD3d 1138,
1143
[3d Dept 2022] [internal quotation marks and citations omitted];
see Rottenberg v Alexander Ct. Condominium
,
239 AD3d 907
, 908 [2d Dept 2025]). "Contractual indemnification provisions are strictly construed to avoid reading into the provision a duty which the parties did not intend to be assumed" (
Town of Colonie v Global Contr. & Painting, Inc.
,
237 AD3d 1280
, 1284 [3d Dept 2025] [internal quotation marks and citations omitted]).
Third-party defendant argues that the contractual indemnity
[*7]
provision at issue provides that defendant is responsible for its own acts of negligence and, as there were no "valid" allegations of negligence against third-party defendant, dismissal is required. However, in addition to the "General Indemnity" section, which limited the indemnification duty to those liabilities "caused by or arising from . . . the negligence or willful misconduct of [third-party defendant] . . . in the performance of the work under this [a]greement," an additional section, titled "Indemnification for Subcontractor's Employees and Property," provides further coverage that is relevant here. Specifically, the latter clause provides that, "[t]o the maximum extent permitted by [a]pplicable [l]aws, [third-party defendant] agrees to indemnify, defend and hold harmless [defendant] from and against any and all [l]osses to [third-party defendant's] property or employees, in any manner caused by or resulting or arising from the work performed by [third-party defendant] or its employees . . . in relation to this [a]greement,
excluding only those [l]osses to the extent arising from or caused by [defendant's] negligence, willful misconduct, or strict liability
" (emphasis added). The agreement further provides that "[third-party defendant's] indemnity obligations under this subsection are
without regard to whether the partial negligence, fault, or liability of [defendant] is a contributing factor in any such claim or loss
" (emphasis added). These two clauses directly implicate the type of claim at issue in this case — i.e., injuries suffered by third-party defendant's employee during the course of performing work under the hauling agreement.
As previously noted, there are issues of fact with respect to the degree of comparative negligence between defendant and plaintiff, an employee of third-party defendant. Accordingly, although the indemnification clauses clearly excluded any losses attributable to defendant's own negligence (
see
Peranzo v WFP Tower D Co. L.P.
,
201 AD3d 486,
488-489
[1st Dept 2022];
compare Lammon v Bayberry Sq., LLC
,
200 AD3d 1170, 1172-1173
[3d Dept 2021]), based upon the outstanding issues of fact with respect to the degree of negligence attributable to plaintiff and defendant, we find that Supreme Court properly denied third-party defendant's motion for summary judgment insofar as it sought dismissal of the contractual indemnification claim (
see Jamieson v Noble Constr. Group, LLC
,
248 AD3d 1203
, 1205 [2d Dept 2026];
Tower v Structure Tone, LLC
,
247 AD3d 624
, 626 [1st Dept 2026];
Stewart v JMDH Real Estate Offs., LLC
,
247 AD3d 514
, 515-516 [1st Dept 2026];
Bordonaro v E.C. Provini Co., Inc.
,
244 AD3d 472
, 475-476 [1st Dept 2025];
compare Newman v New York City Hous. Auth.
,
231 AD3d 443
, 444 [1st Dept 2024]).
Moreover, although defendant does not argue on appeal that Supreme Court erred in denying its motion for summary judgment on the contractual indemnification claim (
see e.g. SCE Envtl. Group, Inc. v Murnane Bldg.
[*8]
Contrs., Inc.
,
242 AD3d 1457
, 1462 n 2 [3d Dept 2025]), we again exercise our discretion to search the record and grant partial summary judgment. In so doing, we find that defendant is "entitled to conditional contractual indemnification from [third-party defendant] even though negligence on its part might ultimately be found to have contributed to plaintiff's injury, and in that instance, [defendant] would be precluded from being indemnified to the extent that its own negligence contributed to the loss claimed" (
Bordonaro v E.C. Provini Co., Inc.
, 244 AD3d at 475-476 [internal quotation marks omitted];
see Tower v Structure Tone, LLC
, 247 AD3d at 626;
Winkler v Halmar Intl., LLC
,
206 AD3d 458, 461
[1st Dept 2022];
Vestal v Yonkers Contr. Co.
,
268 AD2d 872, 874
[3d Dept 2000];
see also Morales v Asarese Matters Community Ctr.
,
103 AD3d 1262
, 1264 [4th Dept 2013],
lv dismissed
21 NY3d 1033
[2013]).
Aarons, J.P., Pritzker, Ceresia and Fisher, JJ., concur.
ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as entirely denied defendant's cross-motion for summary judgment; motion partially granted to the extent set forth herein; and, as so modified, affirmed.
Footnotes
Footnote 1
Although various other entities were also named as defendants in plaintiff's amended complaint, these defendants entered stipulations with plaintiff, discontinuing the action as against them.
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