KAREN B. ROTHENBERG, Judge.
Upon the foregoing papers in this declaratory judgment action, defendant, Eurostruct, Inc. (Eurostruct), moves for an order, pursuant to CPLR 3211 (a) (1) and (a) (7), dismissing the complaint of plaintiff, Pioneer and King, LLC (Pioneer).
Dustin Yellin (Yellin) entered into a January 13, 2012 "Standard Form of Agreement Between Owner and Contractor" with Eurostruct (Contract) for a construction project at 159 Pioneer Street in Brooklyn (Property).
The Contract identifies Yellin as "the Owner" and Eurostruct as "the Contractor." Section 1.1.2 of the "General Conditions of the Contract for Construction" provides that:
Section 2.1.1 of the Contract provides:
Section 3.18.1 of the Contract contains an indemnification provision, which provides, in relevant part:
On March 30, 2012, Hugo Malla (Malla), a construction worker employed by Eurostruct, sustained personal injuries during the course of his employment at the Property. Malla was injured when a plank fell on him. On April 9, 2012, Malla commenced a personal injury action against Pioneer (Underlying Personal Injury Action),
On or about May 22, 2012, Pioneer answered Malla's complaint, denying the material allegations therein and asserting affirmative defenses, including: (1) contributory negligence; (2) payments from collateral sources; and (3) liability is limited under CPLR Article 16.
The Instant Action
On or about May 18, 2016, Pioneer commenced this action for a declaratory judgment by filing a summons and complaint asserting a single cause of action seeking a declaration that Eurostruct is contractually obligated to defend, indemnify and hold Pioneer harmless from any judgment in the Underlying Personal Injury Action.
Pioneer's complaint alleges that "prior to March 30, 2012, Dustin Yellin was the sole member and an agent of PIONEER" and that Yellin "as agent of PIONEER and on behalf of PIONEER" entered into the Contract with Eurostruct, pursuant to which Eurostruct was to perform construction services at the Property "for PIONEER" (complaint at ¶¶7-9). The complaint further alleges that "pursuant to the CONTRACT . . . EUROSTRUCT is required to indemnify and hold harmless PIONEER, along with PIONEER's agents and employees, from and against all claims, damages or losses arising out of or resulting from the performance of the work" (id. at ¶ 10).
In 2016, Eurostruct moved to dismiss Pioneer's complaint, pursuant to CPLR 3211 (a) (1) and (a) (7). By order dated December 7, 2016, this court denied Eurostruct's dismissal motion based on Eurostruct's failure to attach a copy of the complaint to its moving papers.
On or about January 10, 2017, Eurostruct re-filed the identical dismissal motion with a copy of the complaint.
Pioneer, in opposition, submitted Yellin's affidavit in which Yellin attests that he owns investment properties "through companies created for the purpose of ownership."
According to Yellin, on January 13, 2012, he entered into the Contract with Eurostruct "for work to be done at the Property."
Eurostruct, in reply, argues that Yellin is specifically designated as both "Owner" of the Property and Owner's authorized representative under the Contract. Eurostruct further argues that Pioneer is not a third-party beneficiary under the Contract because Pioneer is not one of Yellin's "constituent advisors, partners, employees, agents, representatives, trustees, stockholders, officers and directors, parents, subsidiaries and affiliates," as set forth in Section 3.18.1 of the Contract. According to Eurostruct, "conferring such a status on [Pioneer] would impermissibly expand the indemnification provision beyond its scope."
A motion to dismiss under CPLR 3211(a) (1) on the grounds that a claim is barred by documentary evidence may be granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense to such claim as a matter of law (see Goseh v Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326 ). To be considered "documentary," evidence must be unambiguous and of undisputed authenticity. Mortgages, deeds, contracts, and any other papers, the contents of which are "essentially undeniable," qualify as documentary evidence" (see Sands Point Partners Private Client Group v Fidelity Natl. Title Ins. Co., 99 A.D.3d 982, 984 ).
A dismissal motion under CPLR 3211(a)(7) requires determining whether the plaintiff has stated a cause of action, but, "[i]f the court considers evidentiary material, the criterion then becomes `whether the proponent of the pleading has a cause of action'" (Sokol v Leader, 74 A.D.3d 1180, 1181-1182  [emphasis added], quoting Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 ). Dismissal results only if the movant demonstrates conclusively that the plaintiff has no cause of action, or that "a material fact as claimed by the pleader to be one is not a fact at all" (Sokol, 74 AD3d at 1182, quoting Guggenheimer, 43 NY2d at 275; see also Lawrence v Graubard Miller, 11 N.Y.3d 588, 595 ). A court considering a dismissal motion on the basis of failing to state a cause of action generally must accept the facts alleged in the complaint as true and make any possible favorable inferences for the plaintiff (Sokol, 74 AD3d at 1181), even when such allegations are "upon information and belief" (see Roldan v Allstate Ins. Co., 149 A.D.2d 20, 40 ). However, legal conclusions and factual claims flatly contradicted by the evidence will not be presumed true (see Sweeney v Sweeney, 71 A.D.3d 989, 991 ; Parsippany Constr. Co., Inc. v Clark Patterson Assoc., P.C., 41 A.D.3d 805, 806 ; Meyer v Guinta, 262 A.D.2d 463, 464 ).
It is well settled that "when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms" (W.W.W. Assoc., Inc. v Giancontieri, 77 N.Y.2d 157, 162 ). Eurostruct's dismissal motion is granted because Pioneer, a non-party to the Contract between Yellin and Eurostruct, is not entitled to indemnification under the unambiguous terms of the Contract. The Contract clearly reflects that Yellin entered into the Contract as "Owner" in his individual capacity and not on behalf of Pioneer. Furthermore, section 1.1.2 of the Contract explicitly provides that "[t]he Contract Documents shall not be construed to create a contractual relationship of any kind . . . between any persons or entities other than the Owner and the Contractor."
While the consequences of this ruling may be harsh, the court cannot rewrite the plain terms of the Contract between Yellin and Eurostruct. "It is fundamental that courts enforce contracts and do not rewrite them" (Schmidt v Magnetic Head Corp., 97 A.D.2d 151, 157 ). Accordingly, it is
This constitutes the decision and order of the court.