Opinion
INDEX NO. 155820/2016 Third-Party Index No. 595904/2017
04-14-2020
CHRISTOPHER JONES, Plaintiff, v. 85 RYERSON GROUP, LLC,87 RYERSON REALTY, LLC, AND PK INTERIORS, INC., Defendant. 85 RYERSON GROUP, LLC, 87 RYERSON REALTY, LLC Plaintiff, v. BLUEWATER PLUMBING AND HEATING, INC., ALL STAR CONCRETE AND MASON, INC. Defendant.
NYSCEF DOC. NO. 209 PRESENT: HON. ROBERT DAVID KALISH Justice MOTION DATE 03/13/2020 MOTION SEQ. NO. 003
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 003) 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207 were read on this motion to/for REARGUMENT/RECONSIDERATION. Motion by defendant PK Interior, Inc., ("PK Interiors") for an order, pursuant to CPLR 2221, to reargue that portion of PK Interiors' underlying motion for summary judgment (Seq. 001) dismissing the cross-claims of third-party defendant Bluewater Plumbing and Heating, Inc ("Bluewater") as against it is granted, there being no opposition submitted.
BACKGROUND
The Court assumes the parties' familiarity with the underlying facts and procedural history and recites facts to the extent that they are relevant to the motion sequence at hand.
In its answer to the third-party complaint, Bluewater set forth cross-claims against PK Interiors and All Star Concrete and Mason, Inc., for contractual and/or common-law indemnification and contribution. (Affirm in Supp, Ex G ¶ ¶ 36, 37, NYSCEF Doc No185 [cross-claims of Bluewater]; see also CPLR 3019 [b].)
On November 13, 2019, the Court decided from the bench and read into the record its decision that it "fully resolved sequence 001, in which [it] granted [PK Interiors'] summary judgment with respect to the indemnification claim of [the co-defendants 85 Ryerson Group LLC and 87 Ryerson Realty LLC (collectively "the Ryerson defendants")]." (See Affirm in Supp, Ex M, 48, NYSCEF 191 [11.13.19 Court Transcript].) Although the Ryerson defendants opposed PK Interiors' summary judgment motion in sequence 1, Bluewater did not oppose the motion. However, the Court did not specifically mention that it was dismissing Bluewater's cross-claims against PK Interiors. (See id. at 4-8, 47-49.)
On December 13, 2020, the Court, in its written decision, granted sequence 001 by PK Interiors for summary judgment dismissing the action as against it and further dismissed the cross-claims asserted by the Ryerson defendants as against it. (NYSCEF Doc No 167 at 17.) Unfortunately, this Court did not specifically state that Bluewater's cross-claims against PK Interiors were dismissed. (See Affirm in Supp, Ex M, 8, NYSCEF 191 [11.13.19 Court Transcript].)
PK Interiors now moves for an order:
a. pursuant to CPLR 2221, to reargue that portion of PK Interiors' underlying motion for summary judgment dismissing the cross-claims of Bluewater,(Affirm in Supp, NYSCEF Doc No 178.)
b. upon reargument, granting PK Interiors' summary judgment dismissing the cross-claims of Bluewater on the grounds that PK Interiors was neither negligent nor contractually obligated to indemnify Bluewater, and
c. granting PK Interiors such other and further relief as the Court may deem just and proper.
No party opposes the instant motion.
DISCUSSION
A motion for leave to reargue is addressed to the sound discretion of the motion court and may be granted upon a showing that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law (CPLR 2221 [d] [2]; Frenchman v Lynch, 97 AD3d 632, 633 [2d Dept 2012]; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992], lv dismissed in part and denied in part, 80 NY2d 1005 [1992], rearg denied, 81 NY2d 782 [1993]; Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979]). Reargument is "not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented." (McGill v Goldman, 261 AD2d 593, 594 [2d Dept 1999]; see also Levi v Utica First Ins. Co., 12 AD3d 256, 258 [1st Dept 2004]).
"A party's right to contractual indemnification depends upon the specific language of the relevant contract." (Hanna v Milazzo, 2020 NY Slip Op 00407, *2 [2d Dept 2020] [internal quotation marks and citation omitted].) "[T]he 'intention to indemnify [must] be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances.'" (Masciotta v Morse Diesel Intl., 303 AD2d 309, 310 [1st Dept 2003], quoting Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987].) "In contractual indemnification, the one seeking indemnity need only establish that it was free from any negligence and was held liable solely by virtue of the statutory liability. Whether or not the proposed indemnitor was negligent is a non-issue and irrelevant." (Correia v Professional Data Mgt., 259 AD2d 60, 65 [1st Dept 1999].)
"To establish a claim for common-law indemnification, 'the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident.'" (Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 684-685 [2d Dept 2005], quoting Correia v Professional Data Mgt., 259 AD2d 60, 65 [1st Dept 1999]; Priestly v Montefiore Med. Ctr./Einstein Med. Ctr., 10 AD3d 493, 495 [1st Dept 2004].) "It is well settled that an owner who is only vicariously liable under the Labor Law may obtain full indemnification from the party wholly at fault." (Chapel v Mitchell, 84 NY2d 345, 347 [1994].)
"Contribution is available where two or more tortfeasors combine to cause an injury and is determined in accordance with the relative culpability of each such person." (Mastroianni v Battery Park City Auth., 2018 N.Y. Slip Op. 31780[U], 15 [N.Y. Sup Ct, New York County 2018], quoting Godoy v Abamaster of Miami, 302 AD2d 57, 61 [2d Dept 2003].)
In the present case, PK Interiors cannot be held liable to Bluewater under a theory of contractual indemnification since it is undisputed that there is no contract between the parties for the project at hand. Accordingly, the Court grants leave to reargue to PK Interiors, and, upon reargument, grants summary judgment in its favor dismissing thereby Bluewater's cross-claim for contractual indemnification.
Further, in light of the findings made by the Court in its decision on motion sequence 001 (and there being again no opposition to the instant motion by Bluewater), there is no basis for a claim of common-law indemnification and/or contribution. (See Affirm in Supp, Ex M, 8 [11.13.19 Court Transcript] [Bluewater did not oppose to the dismissal of the common-law indemnification claim at the oral argument.].) Indeed, there was no dispute on the underlying summary judgment motion that PK Interiors neither supervised plaintiff's work nor caused his alleged accident. (See id.) Accordingly, the Court grants leave to reargue to PK Interiors and, upon reargument, grants summary judgment in its favor dismissing Bluewater's cross-claim for common-law indemnification and/or contribution.
Although the above issues were clearly addressed at the oral argument for the summary judgment motions (Seq. 001 and 002), the Court inadvertently failed to address the issue at the conclusion of the oral argument and in its written opinion dated December 13, 2020. (NYSCEF Doc No 167.) Accordingly, the motion is granted and, upon reargument, the cross-claims asserted by Bluewater for contractual indemnification and common-law indemnification and contribution as to PK Interiors are dismissed.
CONCLUSION
Accordingly, it is
ORDERED that the motion by defendant PK Interior, Inc., ("PK Interiors") for an order, pursuant to CPLR 2221, to reargue that portion of PK Interiors' underlying motion for summary judgment dismissing the cross-claims of third-party defendant Bluewater Plumbing and Heating, Inc ("Bluewater") as against it is granted, and upon reargument, third-party Bluewater's cross-claims for contractual indemnification, common law indemnification and contribution against PK Interiors are dismissed; and it is further
ORDERED that the clerk of the court is directed to enter judgment accordingly; and it is further
ORDERED that the counsel for PK Interiors shall serve, via NYSCEF, a copy of the instant decision and order with notice of entry within twenty (20) days after Governor Cuomo's Executive Order 202.8 or any order modifying it is lifted; and it is further
ORDERED that compliance with this order is subject to the Administrative Orders of the Chief Administrative Judge of the Courts, dated March 20 and 22, 2020 (AO/71/20; AO/78/20) or any future orders relating to the litigation of non-essential matters during the current COVID-19 pandemic.
The foregoing constitutes the decision and order of this Court. 4/14/2020
DATE
/s/ _________
ROBERT DAVID KALISH, J.S.C.