Opinion
Index Nos. 160764/2018 595983/2019 595370/2020 595415/2020 595490/2020 595578/2020 595579/2020 595612/2020 MOTION SEQ. Nos. 011 012
05-23-2023
EUGENE STERNKOPF, Plaintiff, v. 395 HUDSON NEW YORK, LLC, EMMIS COMMUNICATIONS CORPORATION, Defendant. 395 HUDSON NEW YORK, LLC Plaintiff, v. JAMES E. FITZGERALD INC., PAR FIRE PROTECTION, LLC PAR PLUMBING CORP., EMMIS RADIO, LLC. Defendant. JAMES E. FITZGERALD INC. Plaintiff, v. ARI PRODUCTS INC. Defendant. EMMIS COMMUNICATIONS CORPORATION Plaintiff, v. JAMES E. FITZGERALD, INC., PAR FIRE PROTECTION, LLC, PAR PLUMBING CORP., ARI PRODUCTS, INC. Defendant. JAMES E. FITZGERALD INC. Plaintiff, v. FINDLAY INSTALLATION SERVICES, L.L.C. D/B/A FINDLAY INSTALLATION Defendant. EMMIS COMMUNICATIONS CORPORATION Plaintiff, v. ARI PRODUCTS, INC. Defendant. EMMIS COMMUNICATIONS CORPORATION Plaintiff, v. JAMES FITZGERALD, PAR FIRE PROTECTION LLC, PAR PLUMBING CORP., EMMIS RADIO LLC, ARI PRODUCTS INC., FINDLAY INSTALLATION SERVICES Defendant. ARI PRODUCTS, INC. Plaintiff, v. FINDLAY INSTALLATION SERVICES, LLC D/B/A FINDLAY INSTALLATION Defendant.
Unpublished Opinion
MOTION DATE 12/15/2022, 12/15/2022
DECISION + ORDER ON MOTION
Lyle E. Frank Judge:
The following e-filed documents, listed by NYSCEF document number (Motion 011) 417, 418, 419, 420, 427, 430, 432, 433, 440, 441,442, 443, 445 were read on this motion to/for REARGUMENT/RECONSIDERATION.
The following e-filed documents, listed by NYSCEF document number (Motion 012) 421,422, 428, 431, 446 were read on this motion to/for REARGUMENT/RECONSIDERATION.
Various parties have moved to reargue and for clarification of this Court's order dated, November 2, 2022. The motions for reargument and clarification are granted, and the decision and order of this Court, as it pertains to motions sequences 11 and 12, is as modified as indicated below.
Motion Sequence 11
Preliminarily this Court must address a procedural defect overlooked in its last decision. Third-party defendant/ second third-party plaintiff/ third third-party defendant/ fourth third-party plaintiff James E. Fitzgerald, Inc.'s ("JEF") is not a direct defendant in this action, accordingly any portion of its motion that seeks relief as against the plaintiff is denied. Notwithstanding that determination, as this Court has dismissed the direct claims pursuant to Labor Law § 200, and common-law negligence, as against defendants 395 Hudson New York, LLC ("395 HUDSON"), and Emmis Communications Corporation, Emmis Radio, LLC (collectively "EMMIS"), specifically defendant JEF is granted relief as a matter of law as there are no longer any claims in the first party action arising out of Labor Law § 200, and common-law negligence to which there can be liability based on contribution or indemnification.
It is undisputed that JEF specifically imposed a duty on itself to remove the debris, specifically the carpet scraps that caused plaintiffs accident. The Court rejects JEF's contentions that specific notice was required, especially in light of the fact that it is undisputed that JEF would have laborers remove the scraps multiple times per day.
Accordingly, as to the claims arising out of Labor Law § 241(6), for the reasons stated in this Court's decision (NYSCEF Doc. 448). JEF's motion to dismiss the third-Party complaints as against it is denied. Additionally, the prior Order of this Court is modified with respect to JEF's motion seeking indemnification from ARI Products, Inc. ("ARI"), that is also denied, as JEF has failed to establish that it is free from negligence. Further, the portion of JEF's motion that seeks to reargue the granting of summary judgment and dismissal of common law indemnity claims to fourth third-party defendant/sixth third-party defendant/ seventh third-party defendants Findlay Installation Services, LLC d/b/a Findlay Installation ("FIS") is granted and modified to the extent that JEF's common law indemnity claims as against FIS survive FIS's motion for summary judgment.
Motion Sequence 12
FIS seeks to reargue the portion of this Court's order that granted summary judgment to second third-party defendant/third third-party defendant/fifth third-party defendant/seventh third-party plaintiff ARI.
The Court agrees that it overlooked the negligence trigger in the underlying contract between the parties. As there is a question of fact as to which entity was negligent, either JEF or FIS or both, the Court modifies its prior Decision and Order and finds that ARI is entitled to a conditional grant of summary judgment as to its contractual indemnification and contribution claims.
ORDERED that the Decision of this Court as it pertains to James E. Fitzgerald, Inc.'s underlying motion, motion sequence 008 is modified in that its motion seeking indemnification from PAR FIRE is DENIED; and it is further
ORDERED that the Decision of this Court as it pertains to Findlay Installation Services, LLC d/b/a Findlay Installation's underlying motion, motion sequence 007 is modified in that its motion dismissing James E. Fitzgerald, Inc.'s claims for common law indemnification is DENIED; and it is further
ORDERED that the Decision of this Court as it pertains to ARI Products, Inc's cross-motion, motion sequence 007, is modified in that its motion seeking summary judgment as against FIS, ARI is granted conditional summary judgment.