# Interstate Restoration, LLC v. Environmental Code Consultants, Inc.

> District Court, E.D. New York · September 17, 2025

URL: https://www.frixlaw.com/law-library/cases/11141534

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 17, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11141534

## How later opinions describe it (automated extraction)

- discussing “‘functional equivalent of contractual privity’ under the three prong test in Ossining” in the context of a breach of contract claim
- discussing “‘functional equivalent of contractual privity’ under the three prong test in Ossining” in the context of a breach of contract claim
- explaining that Vehicle and Traffic Law § 388 imposes vicarious liability on vehicle owners for the negligent use of their vehicles by any person driving with the owner’s permission

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------- X
INTERSTATE RESTORATION, LLC, :
: MEMORANDUM DECISION AND
Plaintiff, : ORDER
:
- against - : 25-cv-3122-BMC
:
:
ENVIRONMENTAL CODE :
CONSULTANTS, INC. and :
CANARSIE GLASS & LOCK SERVICE, :
INC., :
:
Defendants. :
---------------------------------------------------------- X

COGAN, District Judge.
A general contractor usually has a contractual relationship with subcontractors so that if a
subcontractor fails to adequately perform and the property owner looks to the general contractor
for redress, the general contractor can then seek indemnification from the subcontractor. That
didn’t happen in this case. There was no subcontract. Instead, the property owner, non-party
Twin Parks, L.P. contracted directly with another company, defendant Canarsie Glass & Lock
Service, Inc. (“Canarsie”) for part of the work, even though that work was within the purview of
the general contractor, plaintiff Interstate Restoration, LLC d/b/a First Onsite Property
Restoration (“Onsite”). When Twin Parks claimed that the work was defective, Onsite chose to
settle with Twin Parks and, in this action, pursue Canarsie for indemnification. But Onsite can’t,
because it has no legal relationship with Canarsie. Canarsie’s motion to dismiss is therefore
granted.
SUMMARY OF COMPLAINT
Onsite is a general contractor. On February 25, 2020, Twin Parks, L.P. retained Onsite to
perform restoration and reconstruction work as general contractor on its property, which

included the installation of windows throughout the property.
To carry out the work, Onsite entered into a written subcontractor agreement with
defendant Environmental Code Consultants, Inc. (“ECC”) to provide architectural plans for the
installation of the project’s windows. Separately, Twin Parks retained defendant Canarsie to
perform the actual installation of the project’s windows.
Following completion of the project on September 1, 2021, the windows on the 14th floor
began to leak significantly during heavy rainstorms – an issue not present on the property’s other
floors. This caused significant damage to the 14th floor of the property, which in turn impacted
and damaged the floors below.
Onsite retained an outside company to investigate the source of the water infiltration.

The company concluded that the water infiltration issues were caused by the deficient design of
the waterproofing system and improper installation of the windows, attributed to ECC’s failure
to provide adequate and complete design plans for the window installations and Canarsie’s
failure to properly measure the openings for the windows.
Onsite maintains it was neither negligent nor at fault for the water damage. Even so, it
alleges that Twin Parks held it liable as the general contractor and that it “was compelled” to
forgo contractually anticipated payments totaling approximately $1,141,490.26 and to expend
over $1,000,000.00 to remediate the issues.
Onsite brought this lawsuit against Canarsie and ECC, including a claim for common law
indemnification against Canarsie. Canarsie has moved to dismiss for failure to state a claim.
DISCUSSION
I. Standard of Review
To survive a motion to dismiss under Rule 12(b)(6), a pleading must contain “enough

facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility that a defendant has acted
unlawfully. . . . Where a complaint pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id.
(internal quotation marks, quotation, and citation omitted). Said otherwise, plaintiff’s “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555 (citations and footnote omitted).

In conducting the above analysis, the Court must accept as true all the well-pled
allegations contained in the complaint. Iqbal, 556 U.S. at 678. But this tenet “is inapplicable to
legal conclusions.” Id. “[D]etailed factual allegations” are not required, but “[a] pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will
not do.’” Id. (quoting Twombly, 550 U.S. at 555). At issue in this case, therefore, is whether
Onsite plausibly pled all the factual elements of common-law indemnification.
II. Common Law Indemnification
Under New York law, “[a] party's right to indemnification may arise from a contract or
may be implied based upon the law's notion of what is fair and proper as between the parties.”
McCarthy v. Turner Const., Inc., 17 N.Y.3d 369, 374-75, 929 N.Y.S.2d 556 (2011) (internal
quotation marks and citation omitted). “Common-law indemnification is generally available in
favor of one who is held responsible solely by operation of law because of his relation to the
actual wrongdoer.” Id. at 375 (internal quotation marks and citation omitted). “[A] cause of

action for common-law indemnification can be sustained only if: (1) the party seeking indemnity
and the party from whom indemnity is sought have breached a duty to a third person, and (2)
some duty to indemnify exists between them.” Perkins Eastman Architects, P.C. v. Thor Eng'rs,
P.A., 769 F. Supp. 2d 322, 329 (S.D.N.Y. 2011) (citing Highland Holdings & Zito I, L.P. v.
Century/ML Cable Venture, No. 6-cv-181, 2007 WL 2405689, *4 (S.D.N.Y. Aug. 24, 2007)).
But the “key element of a common law indemnification claim is not a duty running from the
indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the
indemnitor.” Id. at 329-30 (citing Raquet v. Braun, 90 N.Y.2d 177, 183, 659 N.Y.S.2d 237
(1997)) (internal quotation marks omitted).
“As a general matter, [t]hose who perform work, or deliver services or products, pursuant

to a contractual or other commercial relationship owe duties of care and proper performance to
those entitled to receive the benefit of their work or services or products.” Id. at 328 (internal
quotation marks omitted). “[A]bsent a special relationship between the parties, no duty is owed
to the public at large or to those outside the class of people entitled to expect the actor's due care
to them.” Id. (citation omitted).
In the present case, because Twin Parks retained both Onsite and Canarsie as contractors,
it follows that both owed Twin Parks a duty of care and proper performance. And accepting all
of Onsite’s well pled allegations as true, Canarsie breached its duty to Twin Parks by failing to
properly install the windows and implement waterproofing measures.
But that does not mean that Canarsie had any duty to Onsite. Onsite alleges that it was
“held liable by Twin Parks as the general contractor and was compelled to forego contractually
anticipated payments . . . and to expend over $1,000,000.00 to remediate the issues resulting
from Defendant’s negligence, errors or omissions.” Onsite maintains, however, that it was

neither negligent nor at fault for the damages or conditions that led to the water infiltration, and
Canarsie alleges Onsite was not vicariously liable for Canarsie’s work, because it was Twin
Parks who directly retained Canarsie, not Onsite.
The key element in this case is whether there exists a special relationship between Onsite
and Canarsie such that Canarsie owed Onsite a separate duty to indemnify it. Onsite
acknowledges that no direct contractual relationship exists between itself (the purported
indemnitee) and Canarsie (the purported indemnitor). Even so, it argues that: (1) the functional
equivalent of privity exists between itself and Canarsie; and (2) it was vicariously liable for the
acts of Canarsie, and that either of these theories allow it to obtain indemnification from
Canarsie.

A. Functional Equivalent of Privity
“In New York . . . even if the plaintiff is not a party to an underlying construction
contract, a breach of contract claim may accrue upon completion of the construction where the
plaintiff is not a ‘stranger to the contract,’ and the relationship between the plaintiff and the
defendant is the ‘functional equivalent of privity.’” Stapleton v. Barrett Crane Design & Eng'g,
725 F. App'x 28, 30-31 (2d Cir. 2018) (cleaned up) (citing Town of Oyster Bay v. Lizza Indus.,
Inc., 22 N.Y.3d 1024, 1030, 981 N.Y.S.2d 643 (2013)). “New York similarly limits professional
negligence claims to situations where the relationship between the plaintiff and the defendant is
either ‘one of privity of contract, or . . . the bond between them [is] so close as to be the
functional equivalent of privity.’” Id. at 31 (citation omitted).
“Courts apply a three-part test to determine whether the functional equivalent of privity
exists: ‘(1) awareness that the [work product was] to be used for a particular purpose or

purposes; (2) reliance by a known party or parties in furtherance of that purpose; and (3) some
conduct by the defendants linking them to the party or parties and evincing defendant's
understanding of their reliance.’” Id. (citing Ossining Union Free Sch. Dist. v. Anderson
LaRocca Anderson, 73 N.Y.2d 417, 425, 541 N.Y.S.2d 335 (1989)); see also Bri-Den Const. Co.
v. Kapell & Kostow Architects, P.C., 56 A.D.3d 355, 355, 867 N.Y.S.2d 437 (1st Dep't 2008)
(discussing “‘functional equivalent of contractual privity’ under the three prong test in Ossining”
in the context of a breach of contract claim). “To satisfy the third prong of New York's
functional equivalent of privity test, there must be some allegation of ‘linking conduct’ by the
professional, that is, any word or action on the part of the professional directed to plaintiffs, so as
to ‘link’ the professional to the non-client.” Stapleton, 725 F. App'x at 31 (2d Cir. 2018)

(cleaned up) (citing Houbigant, Inc. v. Deloitte & Touche LLP, 303 A.D.2d 92, 94 753 N.Y.S.2d
493 (1st Dep't 2003)). “[I]ndemnification has been imposed on this basis only where negligent
misrepresentation or similar torts were alleged.” Richards Plumbing & Heating Co. v.
Washington Grp. Int'l, Inc., 59 A.D.3d 311, 312, 874 N.Y.S.2d 410 (1st Dep’t 2009).
With respect to the first and second prongs of the test, Onsite refers to its allegations that
the scope of its work “included the installation of numerous windows throughout the Property”
and “Canarsie was expressly retained to perform the actual installation of the project’s
windows.” The fact that Canarsie performed a task within Onsite’s scope of work, it claims, is
sufficient to establish that it “delegated a portion of its contractual duties – namely, window
installation – to Canarsie and that Canarsie undertook to perform those duties as a
subcontractor.” These allegations also purportedly show Canarsie “performed work integral to
Onsite’s scope of responsibility and knew that its work was being done for Onsite’s benefit.”
The Court rejects this reasoning. For one, Onsite does not allege Twin Parks retained

Onsite as the exclusive contractor responsible for all reconstructive work at the property. Twin
Parks was free to delegate the work to whomever it chose without implicating Onsite, which it
did, when it separately retained Canarsie to perform the installation of the project’s windows.
Additionally, nowhere in Onsite’s complaint does it allege that Canarsie knew the work
was being done for Onsite’s benefit, nor that Canarsie even knew of Onsite’s existence or role in
the project at all. Onsite fails to allege any kind of “linking conduct” by Canarsie directed to
Onsite that would satisfy the third prong of the functional equivalent of privity test.
Onsite never alleges it directed, controlled or took any part in Canarsie’s installation of
the project’s windows. In fact, Onsite never alleges Canarsie and Onsite had any kind of
communication. The most plausible inference is that Canarsie took on work from Twin Parks for

the purpose of being paid by Twin Parks, conferring the benefit of its work product on Twin
Parks, not Onsite.
Nor could Onsite assert a claim for common-law indemnification under this theory
because it has not alleged negligent misrepresentation or any similar tort by Canarsie. See
Richards Plumbing & Heating Co., 59 A.D.3d at 312.
B. Vicarious Liability
It is unclear what Onsite means when it posits its right to indemnification against
Canarsie on a theory of “vicarious liability.” Vicarious liability is a doctrine, usually applied in
the personal injury context, whereby a principal is held liable, not for its own wrongful acts, but,
by operation of law, for the acts of its agent. It arose because agents are often not able to pay for
the consequences of their own misconduct, and as a matter of social policy, the agent’s liability
is passed on to his principal, on whose behalf he was acting, and who is often in a better position
to compensate an injured plaintiff. See Feliberty v. Damon, 72 N.Y.2d 112, 117-18, 531

N.Y.S.2d 778 (1988) (“The doctrine of vicarious liability, which imputes liability to a defendant
for another person's fault, rests in part on the theory that – because of an opportunity for control
of the wrongdoer, or simply as a matter of public policy loss distribution – certain relationships
may give rise to a duty of care, the breach of which can indeed be viewed as the defendant's own
fault.” (citing Kavanaugh v. Nussbaum, 71 N.Y.2d 535, 546, 528 N.Y.S.2d 8 (1988))).
The term “vicarious liability” is also more loosely used in the context of a duty imposed
by statute without regard to whether the targeted person under the statute engaged in wrongful
conduct. See, e.g., Kelly v. Diesel Const. Div. of Carl A. Morse, Inc., 35 N.Y.2d 1, 6, 358
N.Y.S.2d 685 (1974) (referring to the nondelegable duty imposed on property owners and
contractors to keep work premises safe under Labor Law §§ 240 and 241, as “vicarious”);

Anderson v. Commack Fire Dist., 39 N.Y.3d 495, 500, 191 N.Y.S.3d 292 (2023) (explaining that
General Municipal Law §§ 50-a, 50-b, and 50-c impose vicarious liability on a municipality for
the negligence of its agents when they operate municipally-owned vehicles in the discharge of
their duties); Graham v. Dunkley, 50 A.D.3d 55, 57, 852 N.Y.S.2d 169, 172 (2nd Dep’t 2008)
(explaining that Vehicle and Traffic Law § 388 imposes vicarious liability on vehicle owners for
the negligent use of their vehicles by any person driving with the owner’s permission).
When a principal is held vicariously liable, whether for the acts of its agent, or by statute
without regard to fault, it has, at least in some contexts, a common law right of indemnification
against its agent or the party who caused the actual harm. See Lagares v. Carrier Terminal
Servs., Inc., 204 A.D.3d 1456, 167 N.Y.S.3d 275 (4th Dep’t 2022). In Lagares, a property owner
and its agent hired a contractor to perform replacement work on the property’s roof. One of the
contractor’s employees sustained an injury while performing the work. The court found both the
property owner and its agent vicariously liable for the employee’s injuries under Labor Law §

240(1), which “holds owners and their agents absolutely liable for any breach of th[at] statute
even if the job was performed by an independent contractor over which [they] exercised no
supervision or control.” Id. at 1458 (citing McCarthy v. Turner Const., Inc., 17 N.Y.3d 369, 374,
929 N.Y.S.2d 556 (2011)) (internal quotation marks omitted). The court, however, allowed the
property owner and its agent to seek common-law indemnification against the contractor,
because the property owner and agent established that they were not at fault for the dangerous
condition that caused the employee’s injury, and it was the contractor who exercised actual
supervision over the injury-causing work. Id. at 1459-1460.
Here, there are no factual allegations in the complaint plausibly suggesting that Onsite
was liable to Twin Parks by statute, or because Canarsie was its agent. This was a voluntary

liability that Onsite assumed in its general contract with Twin Parks. Its liability cannot,
therefore, be considered “vicarious.” Having assumed the obligation to install the windows
without covering its exposure for that obligation – by, for example, insisting to Twin Parks that it
needed a separate subcontract with Canarsie, or disclaiming any liability for improper
installation of the windows – it had no relationship with Canarsie that could give rise to a duty to
indemnify.1

1 It is also not clear why, in settling with Twin Parks, Onsite did not obtain an assignment of Twin Parks’ claim
against Canarsie.
Because its liability is not imposed by an agency relationship or by statute, Onsite’s
reliance on Sparks v. Essex Homes of WNY, Inc., 20 A.D.3d 905, 798 N.Y.S.2d 293 (4th Dep’t
2005), is misplaced. That was a personal injury case brought by an employee of a subcontractor
under Labor Law § 241(6), which imposed a nondelegable duty on the property owner and
general contractor to provide reasonable and adequate protection and safety for their workers and
to comply with the safety rules promulgated by the New York Department of Labor. See Ross v.
Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-502, 601 N.Y.S.2d 49 (1993). The
subcontractor in Sparks directed and controlled all of the employee’s work that led to the injury.
In holding that the general contractor’s liability was “vicarious,” the court was referring only to
the fact that its liability was by operation of law — that is, statutory. In the instant case, again, not
only is there no subcontract, but Onsite’s liability to Twin Parks is direct, not imposed by
operation of law through any statute or principal-agent relationship.”
CONCLUSION
For the foregoing reasons, defendant Canarsie’s motion to dismiss is granted.
SO ORDERED.

U.S.D.J.
Dated: Brooklyn, New York
September 17, 2025

2 For both its functional equivalent of privity and vicarious liability arguments, Onsite cites only to cases where the
plaintiff and defendant were related to each other in the same chain of employment: owner-contractor-subcontractor.
See E.C. Contracting, Inc. v. D.F. Pray, Inc., No. 19-civ-6813, 2022 WL 877809 (E.D.N.Y. Jan. 12, 2022); City Sch.
Dist. of Newburgh v. Hugh Stubbins & Assocs., Inc., 85 N.Y.2d 535, 626 N.Y.S.2d 741 (1995); Rotterdam Square
v. Sear-Brown Assocs. P.C., 246 A.D.2d 871, 668 N.Y.S.2d 278 (3rd Dep’t 1998); R.H. Sanbar Projects, Inc. v.
Gruzen P'ship, 148 A.D.2d 316, 538 N.Y.S.2d 532 (1st Dep’t 1989); McCarthy v. Turner Constr., Inc., 17 N.Y.3d
369, 929 N.Y.S.2d 556. Again, that is not the case here.
10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11141534. Public record. Not legal advice.