Summary
In Cohen v New York City Indus. Dev. Agency (91 AD3d 416, 417 [1st Dept 2012]), "plaintiff's testimony as to the source of the plastic debris on which he allegedly slipped was speculative and insufficient to raise a question of fact as to whether Giaquinto caused or contributed to plaintiff's injuries."
Summary of this case from Fernandez v. City of N.Y.Opinion
2012-01-3
Michael COHEN, Plaintiff–Respondent, v. NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY, et al., Defendants–Appellants.J.H. Mack, LLC, Third–Party Plaintiff–Appellant, v. Pre–Fab Construction, Inc., Third–Party Defendant–Respondent.J.H. Mack, LLC, et al., Second Third–Party Plaintiffs–Appellants, v. Giaquinto Masonry, Inc., Second Third–Party Defendant–Respondent.
Law Office of Charles J. Siegel, New York (Jack L. Cohen of counsel), for appellants. Torino & Bernstein, Mineola (Vincent J. Battista of counsel), for Pre–Fab Construction, Inc., respondent.
Law Office of Charles J. Siegel, New York (Jack L. Cohen of counsel), for appellants. Torino & Bernstein, Mineola (Vincent J. Battista of counsel), for Pre–Fab Construction, Inc., respondent. Gannon, Lawrence & Rosenfarb, New York (Lisa L. Gokhulsingh of counsel), for Giaquinto Masonry, Inc., respondent.GONZALEZ, P.J., ANDRIAS, DeGRASSE, RICHTER, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered February 2, 2011, which, to the extent appealed from as limited by the briefs, granted the motion of third-party defendant Pre–Fab Construction, Inc. (Pre–Fab) for summary judgment dismissing the third-party complaint and granted the cross motion of second-third party defendant Giaquinto Masonry, Inc. (Giaquinto) for summary judgment dismissing the second third-party complaint, unanimously affirmed, without costs.
Plaintiff, an ironworker employed by Pre–Fab, alleges that as he and a coworker were moving steel beams, he slipped and fell on plastic debris located on a sand surface. The construction project, which was to build an indoor tennis facility, was owned by defendants New York City Industrial Development Agency and USTA National Tennis Center Association, Incorporated. The owners had contracted with J.H. Mack, LLC to be the general contractor, and J.H. Mack had contracted with Pre–Fab to perform the steel erection work at the site and with Giaquinto to perform the masonry work.
Dismissal of J.H. Mack's claim for contractual indemnification against Pre–Fab was warranted since there is no evidence that Pre–Fab negligently supervised plaintiff's work or otherwise caused or contributed to the accident ( see Paltie v. Marquise Constr. Corp., 49 A.D.3d 380, 852 N.Y.S.2d 774 [2008]; see also Pepe v. Center for Jewish History, Inc., 59 A.D.3d 277, 873 N.Y.S.2d 571 [2009] ).
Moreover, plaintiff's testimony as to the source of the plastic debris on which he allegedly slipped was speculative and insufficient to raise a question as to whether Giaquinto caused or contributed to plaintiff's injuries ( see Grullon v. City of New York, 297 A.D.2d 261, 263–264, 747 N.Y.S.2d 426 [2002] ). Accordingly, the contractual and common-law indemnification claims against Giaquinto were also properly dismissed ( see Consolidated Edison Co. of N.Y., Inc. v. Vilsmeier Auction Co., Inc., 21 A.D.3d 726, 800 N.Y.S.2d 690 [2005] ).