Reyes v Hite Construction, Inc.
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Attorneys and Parties
Brief Summary
Construction accident and risk-shifting dispute over whether a scaffold contractor was bound by a later-executed contractual indemnification agreement.
The Bronx County Supreme Court denied Everest Scaffolding Inc.'s motion for summary judgment seeking dismissal of Hite Construction, Inc.'s contractual indemnification claim.
The Appellate Division reversed that ruling and granted Everest summary judgment dismissing Hite's contractual indemnification claim.
The 2016 indemnification agreement lacked valid consideration. The earlier 2015 scaffold contract and Hite's prior lump-sum payment were merely past consideration, and the later writing did not satisfy General Obligations Law § 5-1105 [allows enforcement of a written promise based on past or executed consideration only if that consideration is expressed in the writing]. Hite's ongoing month-to-month rental payments also could not serve as consideration because they were payments under an existing contractual obligation.
Background
Hite Construction, Inc. and Everest Scaffolding Inc. entered into a 2015 agreement under which Everest would obtain an initial permit and furnish, install, and remove scaffolds for the construction project where plaintiff Manuel Reyes was allegedly injured. In 2016, the parties executed a separate agreement containing an indemnification provision in Hite's favor. After the injury action was brought, Hite asserted a contractual indemnification claim against Everest based on the 2016 agreement.
Lower Court Decision
The Supreme Court, Bronx County, denied Everest's motion for summary judgment dismissing Hite's contractual indemnification claim, allowing the indemnity claim to proceed.
Appellate Division Reversal
The Appellate Division, First Department, unanimously reversed, without costs, and granted Everest's motion for summary judgment. It held that the 2016 indemnification agreement was unenforceable for lack of consideration and dismissed Hite's contractual indemnification claim.
Legal Significance
The decision reinforces New York contract law principles that past consideration cannot support a new promise and that performance of an already existing contractual duty is not valid consideration. It also clarifies that General Obligations Law § 5-1105 requires the writing itself to recite the past or executed consideration for the statutory exception to apply.
A later indemnity agreement in a construction relationship will not be enforced unless it is supported by new consideration or a writing that properly states qualifying past consideration; payments already owed under an existing contract are not enough.