Opinion
26161/2011
11-13-2017
Bill GAINES and Leslie Gaines, Plaintiffs, v. EL SOL CONTRACTING & CONSTRUCTION CORP., Stephen Finn, Ayman Roushdy Farag, The City of New York, Hellman Electric Corp., and Daidone Electric, Inc., Defendants. El Sol Contracting & Construction Corp./El Sol Limited Enterprises (J.V.), Third–Party Plaintiffs, v. Moretrench American Corporation Third–Party Defendant. Moretrench American Corporation, Second Third–Party Plaintiff, v. Daidone Electric Inc., Second Third–Party Defendant.
Sacks & Sacks, Esq., 150 Broadway, New York, New York 10038, (212) 964–5570, Attorney for Plaintiff James G. Bilello & Associates, And Ayman Roushdy Farag, 875 Merrick Avenue, Westbury, New York 11590 (516) 229–4300, Attorneys for defendants Stephen Finn Mulholland Minion Davey McNiff & Bryrer, 374 Hillside Avenue, Williston Park, New York 11596, Attorney for Defendant Hellman Electric Corp. Harris Beach PLLC, 100 Wall Street, 24th Floor, New York, New York 10005, Attorney for Defendant City of New York Fabiani Cohen & Hall, LLP, El–Sol Contracting & Construction Corp., 570 Lexington Avenue, 4th Floor, New York, New York 10022, Attorney for defendant/ third-party plaintiff Malapero & Prisco, LLp, Moretrench American Corporation, Attorney for third-party defendant/ second third-party defendant Law Officers of Katherine Lawrence, 4 Metrotech Center, Suite 2000, Brooklyn, New York 11201, Attorney for defendant Stephen Finn Nicoletti Gonson Spinner LLP, Daidone Electric Inc., 555 Fifth Avenue, 8th Floor, New York, New York 10017, Attorney for defendant and second Third-party defendant
Sacks & Sacks, Esq., 150 Broadway, New York, New York 10038, (212) 964–5570, Attorney for Plaintiff
James G. Bilello & Associates, And Ayman Roushdy Farag, 875 Merrick Avenue, Westbury, New York 11590 (516) 229–4300, Attorneys for defendants Stephen Finn
Mulholland Minion Davey McNiff & Bryrer, 374 Hillside Avenue, Williston Park, New York 11596, Attorney for Defendant Hellman Electric Corp.
Harris Beach PLLC, 100 Wall Street, 24th Floor, New York, New York 10005, Attorney for Defendant City of New York
Fabiani Cohen & Hall, LLP, El–Sol Contracting & Construction Corp., 570 Lexington Avenue, 4th Floor, New York, New York 10022, Attorney for defendant/ third-party plaintiff
Malapero & Prisco, LLp, Moretrench American Corporation, Attorney for third-party defendant/ second third-party defendant
Law Officers of Katherine Lawrence, 4 Metrotech Center, Suite 2000, Brooklyn, New York 11201, Attorney for defendant Stephen Finn
Nicoletti Gonson Spinner LLP, Daidone Electric Inc., 555 Fifth Avenue, 8th Floor, New York, New York 10017, Attorney for defendant and second Third-party defendant
Paul Wooten, J.
The following papers numbered 1 to 26 were read herein.
Notice of Motion/ Order to Show Cause—Affidavits—Exhibits 1–2, 3–4, 5–6, 7–8, 9–10
Answering Affidavits—Exhibits (Memo) 11,12, 13, 14,15,16, 17,18
Replying Affidavits (Reply Memo) 19, 20, 21, 22, 23, 24, 25, 26
Motion sequence numbers 9, 10, 11, 12, and 13 are consolidated for the purpose of disposition.
Defendant Hellman Electric Corp. (Hellman) moves (in motion sequence 9) for an order, pursuant to CPLR 3212, granting summary judgment in its favor dismissing plaintiff Bill Gaines' complaint as well as any cross-claims asserted against it. Defendant, the City of New York (the City) moves (in motion sequence 10), pursuant to CPLR 3212, seeking dismissal of plaintiff's claims and all cross-claims asserted against the City. Defendant Daidone Electric, Inc. (Daidone) moves (in motion sequence 11), pursuant to CPLR 3212, seeking dismissal of plaintiff's claims, all cross-claims and the second third-party complaint as asserted against it. Defendant Stephen Finn (Finn) moves (in motion sequence 12), pursuant to CPLR 3212, seeking dismissal of the complaint and any cross-claims asserted against him. Third-party defendant Moretrench American Corporation (Moretrench) cross-moves (in motion sequence 13) for summary judgment dismissing the third-party complaint.
The record reveals that plaintiffs Bill and Leslie Gaines have divorced since the inception of this action. Plaintiff Bill Gaines is proceeding solely on his individual claims.
BACKGROUND
On June 7, 2011, a construction project was underway at the Gowanus Expressway, an elevated roadway in Brooklyn. This project involved renovation and restoration work and the construction of an elevated High Occupancy Vehicle (HOV) lane. Thus, the work was partially performed in the area underneath the Gowanus Expressway. The record reveals that the Gowanus Expressway is owned and maintained by the State of New York (the State). The State entered into a contract in 2010 with El Sol Contracting & Construction Corp. (El Sol) to serve as the general contractor for the "installation of an HOV flyover ramp on the Gowanus Expressway." El Sol entered into a subcontract with Hellman to serve as the electrical subcontractor for the project. Hellman's duties included relocating traffic signals by disconnecting and then reconnecting the signals. El Sol subcontracted with Moretrench for the installation of micro piles for additional foundation, or support, for the elevated HOV lanes. Plaintiff was employed by Moretrench as a supervisor. He was responsible for the workers that were drilling to create the foundation for the micro piles that would be installed to create the HOV lane.
At approximately 9:00 a.m. on the morning of June 7, 2011, plaintiff arrived at the area of the project located at the intersection of Third Avenue and 60th Street. At this juncture, there were three northbound and three southbound lanes of traffic on Third Avenue, two of which were traveling lanes, and the left lane was utilized as a turning lane. Plaintiff parked his company vehicle, a 2008 Chevy pick up truck, on the Third Avenue median which separated the north and southbound lanes. He exited his vehicle and was standing on the median speaking with his co-worker, Brian Marcoucus. At this moment, Finn was driving a GMC Denali southbound on Third Avenue. When he reached the intersection of 60th Street and Third Avenue, there was a collision between Finn's vehicle and a 2011 Lexus SUV driven by defendant Ayman Roushdy Farag (Farag). Farag had been driving northbound on Third Avenue, and when he reached 60th Street he was in the left turning lane. He testified that although the left-hand turn traffic signal was not working, he proceeded to make a left turn onto 60th Street, which is when the collision occurred. The impact of this collision caused Finn's Denali to hit plaintiff's parked pickup truck which, in turn, struck plaintiff causing him to sustain various injuries.
On or about July 21, 2011, plaintiff served a Notice of Claim upon the City. He commenced the instant action by filing a summons and complaint, on or about November 18, 2011, asserting claims against El Sol, Finn, Farag and the City. In 2014, plaintiff commenced an action against Hellman and Daidone in Bronx County. The two matters were consolidated under Kings County index Number 26161/11 in 2015. Plaintiff's complaint contained claims alleging a violation of Labor Law §§ 240(1), 241(6), 200 and common law negligence. El Sol commenced a third-party action against plaintiff's employer, Moretrench, which then commenced a second third-party action against Daidone. A Note of Issue was filed on April 22, 2016.
The Court notes that plaintiff subsequently withdrew his Labor Law claims as against all defendants (see Plaintiff's Affirmation in Partial Opposition dated November 10, 2016 at ¶ 2).
SUMMARY JUDGMENT STANDARD
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ; Andre v. Pomeroy , 35 NY2d 361, 364 [1974] ; Winegrad v. NY Univ. Medical Cntr. , 64 NY2d 851, 853 [1985] ). The party moving for summary judgment must make a prima facie case showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Alvarez , 68 NY2d at 324 ; CPLR 3212[b] ). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v. AJI Indus., Inc. , 10 NY3d 733, 735 [2008] ; Qlisanr, LLC v. Hollis Park Manor Nursing Home, Inc ., 51 AD3d 651, 652 [2d Dept 2008] ; Greenberg v. Manlon Realty , 43 AD2d 968, 969 [2d Dept 1974] ). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" ( Giuffrida v. Citibank Corp ., 100 NY2d 72, 81 [2003] ; Zuckerman v. City of NY , 49 NY2d 557, 562 [1980] ).
When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v. Twentieth Century–Fox Film Corp. , 3 NY2d 395, 404 [1957] ). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v. Stop & Shop, Inc. , 65 NY2d 625, 626 [1985] ; Boyd v. Rome Realty Leasing Ltd. Partnership , 21 AD3d 920, 921 [2d Dept 2005] ; Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co. , 168 AD2d 610 [2d Dept 1990] ). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied ( Rotuba Extruders v. Ceppos , 46 NY2d 223, 231 [1978] ; CPLR 3212[b] ).
DISCUSSION
Hellman's Motion—Motion Sequence 9
Defendant Hellman moves for an order, pursuant to CPLR 3212, granting summary judgment in its favor dismissing plaintiff's complaint as well as any cross-claims asserted against it. Hellman argues that it is entitled to dismissal of plaintiff's claims as the maintenance of the traffic signals at the intersection where the accident occurred was not within the parameters of the work performed by Hellman pursuant to its contract with El Sol. Hellman contends that the work it was performing at that intersection related solely to relocating certain traffic signal devices below a corrugated metal shielding which was placed above the Third Avenue roadway and below the Gowanus Expressway. Hellman further claims that it was El Sol that was responsible for the maintenance and protection of traffic (MPT) in this area. In this regard, Hellman points to the deposition testimony of Ed Schluter (Schluter), the El Sol Project Superintendent. Schluter testified that the contract between El Sol and Hellman did not require Hellman to maintain the light at issue (Schluter tr. at 35, lines 23–25), and that the only responsibility Hellman had with regard to the traffic lights was to lower them below the shielding (Schluter tr. at 60, lines 9–12). Schluter further testified, when shown a photograph of the traffic light involved in the incident, that he did not believe that this was a light that had been relocated by Hellman (Schluter tr. at 75, lines 21–24) and that he may have asked Hellman to look at the light after the accident occurred (Schluter tr. at 105, lines 11–24).
In further support of its motion, Hellman points to the deposition testimony of the City's witness, Mr. Mario Castro (Castro), who testified that Daidone was the entity responsible for performing maintenance on all traffic signals in Brooklyn (Castro tr at 19, lines 9–16). In addition, Hellman's witness John Brescia (Brescia), testified that Hellman had not been performing any work at the intersection where the accident occurred prior to the accident (Brescia tr. at p22, lines 4–11). Hellman argues that it had no duty to maintain the traffic light at issue and did not displace the duties of the owner of the area. Thus, it maintains that there can be no detrimental reliance by plaintiff, or any other entity, upon the work which was let out to Hellman. Moreover, Hellman argues that the proximate cause of the accident had nothing to do with the failure to maintain the traffic lights but, rather, was a result of the operation of the two vehicles, driven by Farag and Finn, involved in the collision.
In opposition, El Sol argues that Hellman is not entitled to summary judgment because there are issues of fact regarding whether or not it performed work on the subject traffic signal. In support of this contention, El Sol maintains that Brescia, testifying on behalf of Hellman, admitted that if Hellman had seen a problem with a traffic signal it would have fixed it. Thus, El Sol contends that the fact that this traffic signal was outside the scope of Hellman's contract does not establish that Hellman did not in fact work on this particular traffic signal. Specifically, El Sol points out that the record reveals that Hellman did perform work on this traffic signal after the accident occurred. Further, El Sol maintains that Hellman has not established that it was not the proximate cause of the accident and argues in this regard that there can be more than one proximate cause of an accident. Thus, El Sol contends that Hellman has failed to demonstrate that its alleged negligence was not also a proximate cause of the accident. Plaintiff, Finn and Farag also oppose Hellman's motion adopting the same arguments advanced by El Sol.
In reply, Hellman argues that El Sol has specifically admitted, through the deposition testimony of its witness, Mr. Schluter, that the traffic light at issue was not one of the traffic lights that needed to be relocated or removed as part of Hellman's contract. Nor has it demonstrated that Hellman actually performed any work or had any contact with this light prior to plaintiff's accident. Thus, according to Hellman, as El Sol has failed to demonstrate a contractual duty on Hellman's part with regard to this traffic light, El Sol would need to demonstrate that Hellman launched some force of harm. Hellman points out that the testimony establishes that it did not perform any work on this particular traffic light prior to the accident. Thus Hellman submits it has established that it did not launch an instrument of force or harm triggering liability for plaintiff's accident.
In reply to plaintiff's and Farag's opposition, Hellman notes that it did not owe a duty to plaintiff, nor did it launch an instrument of harm. Further, Hellman maintains that there can be no reliance upon work done by it inasmuch as it had not performed any work on the subject traffic light prior to the accident. In support of this, Hellman points to the deposition testimony of its witness Bryan Testi, a foremen at the site, who testified that the traffic light at issue was not touched by Hellman prior to plaintiff's accident (Testi tr at 38–39, lines 23–5). Hellman reiterates that the testimony of El Sol's witness, Mr. Schluter confirms that there was no work performed on the traffic light at issue by Hellman, prior to the accident and that the contract between El Sol and Hellman did not require Hellman to perform maintenance work on the lights at the intersection where the accident occurred. Moreover, Hellman points out that Castro, the City's witness, confirmed that Hellman was not responsible for maintaining the traffic light at issue. Thus, Hellman reiterates that it had no duty to perform work on the subject light, it did not relocate the light at any point prior to the accident, nor perform any work on it whatsoever. Therefore, there was no detrimental reliance on any work performed by Hellman, it did not displace the obligation of another entity which had an obligation to maintain it and did not launch an instrument of harm.
The elements of a cause of action in negligence are "(1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" ( Abbott v. Johnson , 152 AD3d 730, 732 [2d Dept 2017], quoting Solomon v. City of New York , 66 NY2d 1026, 1027 [1985] ; see Merchants Mut. Ins. Co. v. Quality Signs of Middletown , 110 AD3d 1042, 1043 [2d Dept 2013] ; Akins v. Glens Falls City School Dist. , 53 NY2d 325, 333 [1981] ). A duty of reasonable care owed to a plaintiff is elemental to any recovery in negligence (see Fox v. Marshall , 88 AD3d 131 [2d Dept 2011] ; Pulka v. Edelman , 40 NY2d 781 [1976] ). Absent a duty of care, there is no breach, and without breach there can be no liability (see Fox , 88 AD3d at 135 ; Gordon v. Muchnick , 180 AD2d 715 [2d Dept 1992] ).
"As a general rule, a party who enters into a contract to render services does not assume a duty of care to third parties outside the contract" ( Dugan v. Crown Broadway, LLC , 33 AD3d 656 [2d Dept 2006] ; see Church v. Callanan Indus. , 99 NY2d 104, 111 [2002] ; Espinal v. Melville Snow Contrs ., 98 NY2d 136, 138–139 [2002] ). However, the Espinal court articulated (at 98 NY2d at 141 ) three scenarios in which a contracting party assumes a duty of care to persons outside the contract. These are: "(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, ‘launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely [internal citations omitted]."
In support of its motion for summary judgment, Hellman submitted the deposition testimony of its witness Bryan Testi, a foreman at the site. Mr. Testi, when shown a photograph of the traffic signal involved in the instant accident testified that Hellman never touched that signal as it was not one of the signals that needed to be relocated as per the contract between El Sol and Hellman. In addition, Hellman points to the testimony of Schluter, El Sol's Superintendent, who testified that Hellman was not responsible for maintaining traffic signals, but rather relocated some due to the construction taking place. Specifically, when shown a photograph of the traffic signal involved, he testified that he did not believe that this light had been relocated by Hellman. Thus, Hellman has established its entitlement to summary judgment dismissing plaintiff's claims and any cross claims asserted against it through the submission of the deposition testimony of its witnesses, El Sol's witness, the City's witness, as well as the contract between Hellman and El Sol. The record establishes that Hellman had no duty with regard to the traffic signal at issue and did not launch an instrument of harm, inasmuch as the testimony demonstrates that Hellman had no involvement with the subject light prior to plaintiff's accident. That a Hellman employee may have examined the traffic signal after the accident at the behest of El Sol is of no import. Accordingly, Hellman's motion for summary judgment dismissing all claims and cross-claims asserted against it is granted.
The City's Motion—Motion Sequence 10
The City moves for summary judgment dismissing plaintiff's negligence claims and all cross-claims as asserted against the City. The City notes that its Department of Transportation contracted with Daidone to service and maintain all traffic signals in Brooklyn. The City contends that it performed a search of the traffic logs and maintenance records for the two months prior to and including the date of plaintiff's accident for the intersection of 60th Street and Third Avenue. The City submits this maintenance log in support of its motion. The City states that it transmitted all complaints it received regarding traffic signal malfunctions to its contractor Daidone and that it had responded to each complaint and made repairs during this time period in an expeditious manner. The City contends that the last complaint it received related to the subject intersection, prior to the date of the accident, was on May 19, 2011. The City notes that Daidone responded to that complaint and performed the needed repair. Consequently, the City argues that it did not receive the requisite notice of the alleged malfunction of the traffic signal involved herein in order to impose liability upon it. Moreover, the City argues that the acts of Farag, El Sol and Hellman prior to and on the day of the accident were superseding acts that would break the chain of causation. Specifically, the City alleges that Hellman's work on the traffic signals often caused them to go out.
In addition, the City argues that it is entitled to contractual indemnification from Daidone. The City contends that its contract with Daidone, related to the maintenance and repair of the traffic lights, requires Daidone to indemnify the City for all claims of personal injury caused by Daidone's negligence for the duration of the contract. Specifically, sections 28 and E–4 of the contract provide that Daidone is:
"responsible for all physical injuries or death to ... any other person ... sustained during its operations and work under this Agreement resulting from any act of commission or omission or error in judgment of any of its officers, trustees, employees, agents, servants, or independent contractors."
In further support of its argument that Daidone is contractually obligated to indemnify it, the City also notes that its contract with Daidone requires Daidone to procure insurance naming the City as an additional insured.
In opposition to the City's motion, Hellman argues that the City's assessment of Hellman's role is inaccurate and that it mischaracterizes the testimony of Hellman's representative, Mr. Brescia. Hellman stresses that Mr. Brescia actually testified that the only time a traffic signal was out was when Hellman disconnected it to relocate it and that this did not impact any other traffic signals. Moreover, Hellman notes that the testimony in this case establishes that the traffic signal at issue was not relocated by Hellman, nor did it perform any work at the intersection in question before the accident, and thus there is no question of fact regarding Hellman's lack of liability for this accident.
Daidone opposes that portion of the City's motion seeking contractual indemnification. Daidone argues that the City has not asserted a cross-claim for contractual indemnification. In this regard, Daidone notes that the City has failed to attach a cross-claim to its motion and has not sought leave to amend its answer to belatedly assert a cross-claim for indemnification against Daidone. Moreover, Daidone argues that there is no evidence that its negligence caused or contributed to plaintiff's accident.
El Sol submits partial opposition to the City's motion but notes that it does not oppose the City's motion seeking dismissal of plaintiff's complaint against the City. Rather, El Sol seeks to clarify misstatements of fact contained in the City's moving papers. El Sol contends that the City mischaracterizes El Sol's responsibilities at the site of plaintiff's accident. El Sol states that at the time of the incident there was no MPT requested in the area where the accident occurred. In addition, El Sol contends that the City's claim that El Sol performed work on the subject traffic signal prior and subsequent to the accident is not supported by any evidence in the record.
In opposition, Finn argues that the City has an affirmative duty to assure that traffic lights in the City are working at all times and claims such duty was violated in the instant case. Farag also opposes the City's motion and states that questions of fact exist that preclude granting of summary judgment to any party.
In reply, the City reiterates its argument that it had no notice of any malfunction of the traffic signal involved in this incident prior to plaintiff's accident and, thus, cannot be held liable for plaintiff's injuries arising therefrom. In addition, the City maintains that Farag's acts constituted superseding causes and notes that he failed to oppose the City's motion in any meaningful way. Next, the City claims that it did not mischaracterize Hellman's control over the subject traffic device. Finally, the City argues that it is entitled to contractual indemnification from Daidone, but that this is academic inasmuch as both the City and Daidone are entitled to summary judgment dismissing plaintiff's claims due to lack of notice of the alleged dangerous condition. The City notes that none of the parties opposing its motion dispute that it lacked notice. Further, with regard to plaintiff's arguments concerning the City's affirmative duty to ensure the proper functioning of traffic lights, the City notes that the existence of the duty does not impose liability; rather, plaintiff must still demonstrate the City's actual or constructive notice of the defect.
While a municipality is liable for the failure to maintain its traffic lights in a reasonably safe condition, liability for such failure will only attach if it is proven that the municipality caused the defective condition alleged or had prior notice, actual or constructive, of the same (see Salazar v. City of New York , 104 AD3d 931, 932 [2d Dept 2013] ; Alvarez v. Hee Youn Koo , 16 AD3d 442, 442 [2d Dept 2005] ).
Here, the Court finds that the City has established its prima facie entitlement to summary judgment dismissing the complaint and all cross-claims as asserted against it by setting forth evidence that it maintained the traffic light at the subject intersection in a reasonably safe condition and that it did not have notice of the broken traffic signal prior to the incident at issue (see Watt v. County of Nassau , 130 AD3d 613 [2d Dept 2015] ; Regan v. City of New York , 127 AD3d 843 [2d Dept 2015] ; Salazar , 104 AD3d at 932 ; Alvarez , 16 AD3d at 442 ). Specifically, the City submits the Traffic Maintenance Log for the traffic signal involved for the two-month period prior to the date of the accident. The log demonstrates that during the two-month period prior to the date of the accident, the City had received transmittal of a problem with the signal on April 19, 28, 29 and May 19, 2011. The log indicates a response to all of the complaints regarding the traffic signal at issue and repairs at least two weeks prior to plaintiff's accident. Thus, the City has demonstrated that it did not have notice of the traffic signal malfunction prior to plaintiff's accident in order to remedy it. None of the opposing parties have raised an issue of fact in this regard (see generally Alvarez v. Prospect Hosp. , 68 NY2d 320 [1986] ). Accordingly, liability cannot be imposed upon the City for the accident's occurrence. Based upon the foregoing, the City's motion seeking summary judgment dismissing the complaint and all cross-claims as asserted against it is granted. That branch of the City's motion seeking indemnification is denied as moot.
Daidone's Motion—Motion Sequence 11
Daidone moves for summary judgment dismissing plaintiff's complaint, all cross-claims and the second third-party complaint as asserted against it. Daidone argues that liability cannot be imposed upon it as the alleged malfunctioning traffic light was not the proximate cause of plaintiff's accident. Daidone contends that the record establishes that Farag was familiar with the subject intersection and testified that he had made the same left turn before but always when the left turn green arrow was illuminated. On the date of the accident, however, he observed that the left turn signal was dark but attempted to make the left turn at a point in time when he believed it was safe to do so. Thus, Daidone maintains the alleged malfunctioning traffic light was not the proximate cause of the accident.
In opposition, El Sol argues that Daidone has not established its entitlement to summary judgment because it failed to prove that it was not negligent and that its own negligence was not a proximate cause of plaintiff's accident. Plaintiff opposes by arguing that questions of fact exist precluding a grant of summary judgment in Daidone's favor. Finn also oppose Daidone's motion by adopting El Sol's arguments.
Second third-party plaintiff Moretrench has not submitted opposition to Daidone's motion.
In reply to El Sol's opposition, Daidone argues that El Sol's opposition is misplaced and fails to rebut Daidone's entitlement to summary judgment. Daidone notes that El Sol does not oppose the City's motion for summary judgment which is based on lack of notice and a violation of Vehicle and Traffic Law (VTL) § 1117, the same basis as Daidone's motion. Daidone argues that if it is determined that the City lacks notice of the alleged defective condition, Daidone must also be found to have lacked notice, given that it is the City that transmits complaints of traffic signal defects to Daidone to be repaired. Moreover, Daidone contends that any action, or inaction, on its part was not a proximate cause of the accident.
In reply to Finn and plaintiff's opposition, Daidone claims that plaintiff erroneously argues that prior, unrelated issues with the subject traffic light create a question of fact regarding Daidone's role in the subject accident. Moreover, Daidone argues that plaintiff fails to refute the fact that Farag was aware of the malfunctioning traffic light and the need to exercise caution. Thus, it asserts that any negligence on its part in maintaining the traffic light was not the proximate cause of the accident.
This case involves a malfunctioning traffic signal, and Daidone is the contractor hired by the City to maintain the subject traffic signal. As discussed above with regard to Hellman's motion, liability cannot be imposed upon a contractor that has not assumed a duty of care to third parties outside the scope of the contract. Here, Daidone has demonstrated that it did not owe the plaintiff a duty of care, since its limited maintenance contract with the City did not displace the City's duty to maintain the traffic signal at the subject intersection in a reasonably safe condition and it did not launch an instrument of harm (see Watt , 130 AD3d at 614 [citations omitted]. Although the negligent repair of a traffic light may fall within the first exception articulated in Espinal, related to the imposition of liability on a contractor that has not assumed a duty of care, for launching a force or instrument of harm (see Ruiz v. Peralta , 306 AD2d 150 [1st Dept 2003] ; Ludwig v. Welsbach Elec. Corp. , 305 AD2d 124 [1st Dept 2003] ), the record repair log submitted by the City demonstrates that Daidone performed repairs as required under its contract with the City. The log demonstrates that no complaints regarding the instant light were transmitted to the City, and, in turn, transmitted to Daidone for repair, for over two weeks prior to the accident. Thus, Daidone lacked both the requisite notice and duty in order for liability to be imposed upon it for the accident's occurrence (see Davilmar v. City of New York , 7 AD3d 559, 560 [2d Dept 2004] ). Accordingly, Daidone's motion seeking summary judgment dismissing the complaint, all cross-claims and the second third-party complaint as asserted against it is granted.
Finn's Motion—Motion Sequence 12
Finn moves for summary judgment dismissing all claims and cross-claims asserted against him arguing that he was not negligent in the happening of the accident. He points to his testimony as well as the testimony of non-party witness Boris Sedov (Sedov), both of whom testified that the light was green as Finn traveled through the intersection of 60th Street and Third Avenue at approximately 30 miles per hour. Sedov testified that he had an unobstructed view when he witnessed the front of Farag's vehicle hit the driver's side of Finn's vehicle (Sedov tr at 35, lines 8–16). Thus, Finn argues that since he had a green light in his favor and was driving within the posted speed limit of 30 miles per hour, he is free from any negligence and entitled to summary judgment dismissing all claims and cross-claims asserted against him. Moreover, he argues that the accident was caused by Farag's negligence and notes that Farag made a left turn at the intersection despite knowing that the left turn signal was broken. In support of this contention, Finn cites VTL § 1141 which provides:
"The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard."
Finn argues that Farag's left turn was in direct violation of VTL § 1141 and resulted in striking Finn's lawfully traveling vehicle. He contends that it was Farag's actions which caused the ensuing domino effect which resulted in plaintiff's injuries.
In opposition, El Sol contends that Finn failed to demonstrate that his own negligence did not contribute to the accident. Similarly, Farag opposes Finn's motion arguing that the deposition testimony raises questions of fact regarding Finn's actions with regard to the accident. Specifically, Farag points to his own testimony that he had been at a total stop waiting to turn left and then took his foot off the brake and rolled a few feet when Finn's car appeared and hit his vehicle in the front. Plaintiff opposes Finn's motion by adopting El Sol's argument.
"Pursuant to Vehicle and Traffic Law § 1141, the operator of a vehicle intending to turn left within an intersection must yield the right-of-way to any oncoming vehicle which is within the intersection or so close to it as to constitute an immediate hazard" (see Gobin v. Delgado , 142 AD3d 1134, 1136 [2d Dept 2016] ; Attl v. Spetler , 137 AD3d 1176 [2d Dept 2016] ; Foley v. Santucci , 135 AD3d 813 [2d Dept 2016] ). A violation of this statute constitutes negligence per se (see Katikireddy v. Espinal , 137 AD3d 866, 867 [2d Dept 2016] ; Vainer v. DiSalvo , 79 AD3d 1023, 1024 [2d Dept 2010] ). Moreover, a driver with the right-of-way is entitled to assume that another driver will yield in compliance with the VTL (see Attl, 137 AD3d at 1176 ; Yoon v. Chen , 127 AD3d 1023, 1024 [2d Dept 2015] ; Arias v. Tiao , 123 AD3d 857, 858 [2d Dept 2014] ).
Here, the deposition testimony of Finn, Farag and Sedov establishes that Finn had the right-of-way, was not driving in violation of any statutes and, thus, he was entitled to anticipate that Farag would obey traffic laws which required him to yield (see Ismail v. Burnbury , 118 AD3d 756, 757 [2d Dept 2014] ; Moreno v. Gomez , 58 AD3d 611, 612 [2d Dept 2009] ; Moreback v. Mesquita , 17 AD3d 420, 421 [2d Dept 2005] ). The opposing parties have failed to raise a triable issue of fact as to whether Finn was comparatively at fault in the operation of his vehicle (see Yoon, 127 AD3d at 1024 ; Simeone v. Cianciolo , 118 AD3d 864, 865 [2d Dept 2014] ; Maloney v. Niewender , 27 AD3d 426, 426–427 [2d Dept 2006] ). Accordingly, Finn's motion for summary judgment dismissing plaintiff's claims and any and all cross-claims asserted against him is granted.
Moretrench's Cross–Motion—Motion Sequence 13
Moretrench cross-moves for summary judgment dismissing the third-party complaint brought by El Sol asserting claims for contractual indemnification and breach of contract. Moretrench points out that its subcontract with El Sol contains an indemnification clause which requires Moretrench to indemnify and hold harmless El Sol from claims:
"arising out of the subcontract work and caused by subcontractor actions, ..., provided however, that no such person or entity shall be so indemnified for loss, liability ... resulting from an admission, finding or judgment of negligent acts or omissions or action/inactions of such person or entity."
Moretrench argues that the evidence in the record demonstrates that the proximate cause of plaintiff's injuries was the negligence of Farag in the operation of his vehicle in violation of VTL §§ 1117 and 1141. Thus, Moretrench maintains that the indemnification clause of the subcontract was not triggered inasmuch as the accident did not arise out of, nor was it caused by, Moretrench's work. With regard to El Sol's claims alleging that Moretrench breached its contract by failing to procure insurance naming it as an additional insured, Moretrench attaches a copy of its General Liability Policy of Insurance issued by Arch Insurance under Policy Number 11PEG2394404 covering the period of May 23, 2011–May 23, 2012. Moretrench points out that the policy has an additional insured endorsement which states:
"Who is an: ‘insured’ is amended to include as an insured any person or organization for whom you are performing operations when you are specifically required by a written construction contract or agreement with such person or organization to include them as an additional insured on your policy and provide coverage for such additional insured only for liability arising out of:
"i) ‘your work’ at the location designated; or
ii) the ‘products completed operations hazard.
"Coverage afforded to these additional insured parties will be primary to, and non-contributory with, any other insurance available to that person or organization."
Moretrench therefore argues it has provided proof that it procured the requisite insurance and that there can be no breach of contract claim.
In opposition, El Sol argues that Moretrench's cross-motion is procedurally and substantively defective. El Sol notes that plaintiff filed his Note of Issue and Certificate of Readiness on April 22, 2016, thus making June 21, 2016 the deadline for filing dispositive motions, which Hellman, Daidone, the City and Finn all satisfied by timely filing their respective summary judgment motions. However, Moretrench did not file the instant cross-motion until February 17, 2017, almost eight months past the deadline. El Sol highlights that Moretrench has not offered any explanation or demonstrated good cause for filing this untimely motion. In addition, El Sol notes that it did not move against any party in this action, including Moretrench, and thus argues that Moretrench cannot cross-move against it.
In reply, Moretrench appears to argue that documents and deposition testimony that have been in possession of all parties are the basis for its cross-motion and the fact that it is untimely and procedurally defective is of no consequence. However, the Court disagrees.
Pursuant to this Court's Part 97 Rules, which are published on the Kings County Supreme Court website, as well as Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6 the parties had 60 days after the Note of Issue filing to make any dispositive motions (see Goldin v. New York & Presbyt. Hosp., 112 AD3d 578, 579 [2d Dept 2013] ). Under CPLR 3212(a) and the above court rule, a movant must obtain leave of the court on good cause shown for a "delay in making a motion ..." ( Brill v. City of New York , 2 NY3d 648, 652 [2004] ). Such showing of good requires "a satisfactory explanation for the untimeliness ...rather than simply permitting meritorious, nonprejudicial filings, however tardy" ( Brill , 2 NY3d at 652 ; Miceli v. State Farm Mut. Auto. Ins. Co. , 3 NY3d 725 [2004] ; see also Gaines v. Shell–Mar Foods, Inc., 21 AD3d 986, 988 [2d Dept 2005] ["Shell–Mar's contentions that no prejudice resulted from its delay and that its motion was meritorious were insufficient justifications to permit late filing"] ). When a movant fails to demonstrate good cause, "a court has no discretion to entertain even a meritorious, nonprejudicial summary judgment motion" ( Hesse v. Rockland County Legislature , 18 AD3d 614, 614 [2d Dept 2005] ; Rivera v. Toruno , 19 AD3d 473 [2d Dept 2005] ; see also Mayorquin v. AP Development, LLC , 92 AD3d 849 [2d Dept 2012] ).
However, a cross-motion for summary judgment made after the expiration of the statutory time period "may be considered by the court, even in the absence of good cause, where a timely motion for summary judgment was made seeking relief ‘nearly identical’ to that sought by the cross motion" ( Filannino v. Triborough Bridge & Tunnel Auth. , 34 AD3d 280, 281 [1st Dept 2006] ) appeal dismissed 9 NY3d 862 [2007] ; see Sheng Hai Tong v. K & K 7619, Inc. , 144 AD3d 887, 890 [2d Dept 2016] ; Derrick v. North Star Orthopedics, PLLC , 121 AD3d 741, 743 [2d Dept 2014] ; He Ping Shao v. Cao Zhao Wei , 118 AD3d 943, 944 [2d Dept 2014] ; Grande v. Peteroy , 39 AD3d 590, 591–592 [2d Dept 2007] ). Importantly, though, this exception only applies to true cross motions as defined in CPLR 2215, and not to purported "cross motions" against a non-moving party (see Gaines , 21 AD3d at 988 [2005] ; see also Sanchez v. Metro Bldrs. Corp. , 136 AD3d 783, 785 [2d Dept 2016] ). Here, Moretrench is moving against El Sol, a non-moving party in this action. Thus, the Court is without discretion to decide the merits of its untimely motion. As such, Moretrench's cross-motion seeking to dismiss the third-party complaint brought by El Sol asserting claims for contractual indemnification and breach of contract is denied.
CONCLUSION
Based upon the foregoing, it is hereby
ORDERED that the motions by defendants Hellman, the City, Daidone and Finn (motion sequences 9 through 12, respectively) seeking summary judgment dismissing all claims and cross-claims as asserted against each moving defendant and the second third-party action against Daidone are granted, and said claims cross-claims and cross-claims are hereby dismissed as against moving said defendants, and the second third-party action against Daidone is hereby dismissed; and it is further,
ORDERED that third-party defendant Moretrench's cross-motion (motion sequence 13) for summary judgment dismissing the third-party complaint asserted against it is denied; and it is further,
ORDERED that counsel for defendant Hellman is directed to serve a copy of this Order with Notice of Entry upon all parties and the Clerk of the Court who shall enter judgment accordingly.
This constitutes the Decision and Order of the Court.