Key Points

  • The Appellate Division, First Department, unanimously held that Universal Protection Service must contractually indemnify ABM Security Services and ABM Onsite Services for a January 2016 trip-and-fall over a barricade on the plaza at 1251 Avenue of the Americas.
  • Applying Delaware law's strict construction of indemnity clauses, the court held that Universal assumed liability under the asset purchase agreement for incidents arising from the operation or conduct of the Security Business, even if ABM still employed the guards when the fall occurred.
  • The court held that placing barricades to protect pedestrians from falling ice was part of ABM Security's access-control responsibility and a safety duty under the master building services agreement, and that the transition services agreement did not compel a different result.
  • The court rejected Universal's argument that ABM never properly moved for summary judgment, finding no prejudice because Universal had opposed the relief on the merits.
  • The court modified the order to dismiss ABM's contribution cross-claim against Universal, because the trial court had found Universal free from negligence as a matter of law.

A New York appeals court ruled Thursday that Universal Protection Service must indemnify two ABM companies against a pedestrian's injury claim over a barricade on a Manhattan plaza, holding that Universal took on that liability when it bought ABM's security business about three months before the accident.

A unanimous four-justice panel of the Appellate Division, First Department, with Justice Kapnick presiding and Justices Rosado, O'Neill Levy and Parker-Raso, issued the unsigned decision. It largely affirmed a March 5, 2025, order by Justice Lori S. Sattler of the state Supreme Court in Manhattan. The panel gave Universal one partial win, dismissing ABM's separate claim for contribution.

The ruling means Universal's promise in the purchase contract to take on liabilities arising from "the operation or conduct of the Security Business" reached the accident even if ABM still employed the guards when it happened. The court reached that result under Delaware law, which requires indemnity clauses to be read strictly.

The plaintiff, Akile Latifaj, alleges that on January 15, 2016, she tripped over the leg of a metal barricade in the exterior pedestrian plaza of the building at 1251 Avenue of the Americas. The owner, 1251 Americas Associates, a subsidiary of Mitsui Fudosan America, had retained ABM Security Services and ABM Onsite Services, which were providing security for the property under a master building services agreement.

About three months before the fall, ABM Onsite and Universal signed an asset purchase agreement under which Universal bought the "Security Business" and the security contract for the property. About seven hours before Latifaj fell, the building's property manager told ABM Security to place barricades on the plaza as a precaution because ice was falling off the building.

The panel noted that Delaware law, which governs the agreements, allows a contractor to be indemnified against its own negligence. But the language "must be crystal clear and unequivocal in requiring the contractor to assume all liability for damage claims, [regardless of] whichever party may have been guilty of the negligence which actually caused the injury," the court wrote, quoting a 1972 Delaware decision.

Even under that strict reading, the court held, Universal assumed liability to the extent the incident arose "out of or resulted from the operation or conduct of the Security Business," and it did so "even if the security guards were still employed by ABM Security and ABM Onsite when the incident occurred."

Universal had argued that its obligations were never triggered because setting out barricades fell outside the master building services agreement. The panel said the agreement's own terms contradicted that position, because they described its purpose as to "provide unarmed guard service/access control" and "other related life safety duties" for the property.

"Placing barricades to prevent pedestrians on the plaza from being struck with ice falls within ABM Security's responsibility of controlling access to the property and constitutes a 'safety duty,'" the court wrote.

The panel also rejected Universal's reliance on a separate transition services agreement, which the two companies signed the same day as the purchase agreement and which was in effect at the time of the fall. That agreement stated that Universal was "assuming the Assumed Liabilities . . . in accordance with the terms and conditions of the Asset Purchase Agreement," and the purchase agreement controlled in any conflict. The court added that the transition agreement's indemnity section pointed the same way, because "the placement of the barricades arose out of or resulted from ABM Onsite's performance of a service." Universal's papers, the court held, failed to raise an issue of fact as to whether it had assumed liability for the security business.

Universal also argued that ABM had never actually moved for summary judgment on its contractual indemnity claim. The panel disagreed. ABM's notice of motion sought an order under CPLR 3212, and Universal had filed opposition arguing that ABM was not entitled to judgment on its claims. "Thus, any irregularity in the notice of motion did not result in prejudice to Universal," the court wrote.

The court also rejected Universal's contention that the plaintiff's claim fell outside a 2002 decision holding that "a defendant who undertakes to render services and then negligently creates or exacerbates a dangerous condition may be liable for any resulting injury," noting that the record shows ABM Security placed the barricade before Latifaj fell.

Universal also failed to show that the barricade leg was an open and obvious condition that was readily observable and not inherently dangerous, the panel held. Latifaj testified that a photograph in the record showed a similar barricade, not the one that caused her accident, and that she did not see the leg before she fell.

Her testimony that she was rushing to catch a train did not change the outcome, the court said, because any comparative negligence on her part "would merely diminish her recovery in proportion to the defendants' culpable conduct."

The one modification turned on a finding by Justice Sattler herself. Because the trial court had found Universal "free from negligence as a matter of law because it was not present at the site and exercised no supervisory control at the time of the incident," the panel held, it should have dismissed ABM's cross-claim for contribution against Universal.

Universal was represented by Patrick J. Lawless of Wilson Elser Moskowitz Edelman & Dicker LLP. ABM Security and ABM Onsite were represented by Robert G. Spevack of Jeffrey Samel & Partners. Latifaj was represented by John A. Del Duco III of Sobo & Sobo L.L.P.

The order leaves Universal bound to indemnify ABM, with ABM's contribution claim against Universal dismissed. The decision is uncorrected and subject to revision before publication in the Official Reports.