Opinion
113335/2011
10-01-2018
Carl J. ZAMPINO, Jr., Plaintiff, v. STRUCTURE TONE, INC. and The City of New York, Defendants. Structure Tone, Inc. and the City of New York, Third-Party Plaintiff, v. Call-A-Head Corp. and Call-A-Head Portable Toilets, Inc., Third-Party Defendants.
Structure Tone by Blank Rome, William R. Bennett III, 405 Lexington Ave., New York, NY 10174 Call-A-Head, Perry, Van Etten, Rozanski & Primavera, LLP, 225 Broadhollow Road, Ste. 430, Melville, NY 11747, & 60 Broad Street, NY NY 10004
Structure Tone by Blank Rome, William R. Bennett III, 405 Lexington Ave., New York, NY 10174
Call-A-Head, Perry, Van Etten, Rozanski & Primavera, LLP, 225 Broadhollow Road, Ste. 430, Melville, NY 11747, & 60 Broad Street, NY NY 10004
Carmen Victoria St. George, J.
This Labor Law action alleges that defendants Structure Tone, Inc. (Structure Tone) and The City of New York (the City) violated Labor Law §§ 200, 240 (1), and 241 (6). Plaintiff also alleges common law negligence. Plaintiff maintains that he sustained injuries when he was servicing the portable toilets at a construction site. Structure Tone was the general contractor at the site. Plaintiff alleges the injuries occurred when he attempted to climb over a large tree pot which blocked his access to the back of a Structure Tone trailer, the location of the toilet's holding tank. Plaintiff's employer was Call-A-Head Corp. and Call-A-Head Portable Toilets, Inc. (collectively, Call-A-Head).
Defendant Structure Tone brought a third-party complaint against Call-A-Head as well as against Scottsdale Insurance Company. Structure's pleading asserts that Call-A-Head had a contractual duty to indemnify Structure Tone for all claims for liability relating to, inter alia, personal injury claims, and that Call-A-Head accordingly obtained a policy from Scottsdale. According to the third-party complaint, because Structure Tone allegedly was not negligent or guilty of misconduct which led to Mr. Zampino's accident, indemnification is proper under the agreement.
The third-party complaint as against Scottsdale has been severed. Currently, Call-A-Head moves to dismiss the third-party complaint. Call-A-Head notes that the complaint asserts that Structure Tone negligently stored its material, and that this was the cause of the accident. Call-A-Head quotes the deposition testimony of Structure Tone witness, Stacy Dackson, who stated that Call-A-Head "[was] not formally a subcontractor. They were considered more of a vendor, because of the nature of the work, of them not being participatory on the site, just providing a service only. Similar to that of a Poland Spring delivery type of thing" (Dackson Dep., at p 61, l 120 to p 62, l 2). In addition, Call-A-Head cites the deposition testimony of its president, Charles Howard, who states that there was no obligation to indemnify Structure Tone. Instead, Call-A-Head's obligation was limited to showing that it had worker's compensation insurance, disability insurance, and liability insurance. Mr. Howard's description of his company's role echoed that of Ms. Dackson: "We are just a supplier of a service. We are not a contractor doing any contracting at all. We don't do any work on the site other than servicing, so we are a supplier. And a contract[or] is different from a supplier" (Howard Dep., at p 47 ll 10-16). It argues, that, therefore, Structure Tone does not have a viable contractual indemnification claim.
Furthermore, Call-A-Head points out, plaintiff received worker's compensation benefits from Call-A-Head. Under Worker's Compensation Law § 11, therefore, Call-A-Head's liability is limited to worker's compensation benefits unless a third party such as Structure Tone "proves through competent medical evidence that such employee has sustained a ‘grave injury.’ " Here, Call-A-Head claims, plaintiff has not sustained a grave injury, and therefore only contractual indemnification is possible. Call-A-Head contends that the Certificate of Insurance on which Structure Tone relies is not a contract and, by its terms, confers no rights upon Structure Tone other than those created by contract; that there is no obligation to indemnify in the contract between Call-A-Head and Structure Tone; and that the document was not created by Call-A-Head.
Structure Tone opposes the motion. It argues that Mr. Howard, who testified on behalf of Call-A-Head, was not a party familiar with the Certificate of Insurance or the specifics of the parties' agreement, and therefore Call-A-Head violated the Court's August 17, 2017 order to produce a party with knowledge. Structure Tone stresses that Call-A-Head's Certificate of Insurance states that Structure Tone is an additional insured under Call-A-Head's contract with Scottsdale. Moreover, according to Structure Tone, Scottsdale stated that, contrary to Call-A-Head's obligation and to the Certificates of Insurance — both of which mention a duty of indemnification -- Call-A-Head did not make sure the policy it obtained was primary and noncontributory. It states that the above creates issues of fact which are sufficient to defeat Call-A-Head's motion for dismissal. Structure Tone does not dispute that only contractual liability is possible because plaintiff did not suffer a grave injury as defined under the Worker's Compensation Law.
In reply, Call-A-Head states that Mr. Howard was the appropriate witness, and it cites this Court's order resolving motion sequence number 002 in support. It stresses that, under the Certificate of Insurance, Call-A-Head's duty to insure Structure Tone on a primary and non-contributory basis was continent on the existence of this requirement in a written contract, and it alleges that there was no such contractual obligation. It reiterates that the certificates created no binding contractual obligations.
Where issues of fact exist, a motion for summary judgment for contractual indemnification must be denied (see, e.g., Callan v. Structure Tone , 52 AD3d 334, 335-36 [1st Dept 2008] ). Here, this Court concludes that, as Structure Tone alleges, issues of fact remain as to the Call-A-Head's alleged duty to defend claims under the subcontract, as well as to Structure Tone's contention that it was not negligent. Accordingly, the more prudent course of action is to deny judgment at this time, with leave to renew when negligence and other issues have been resolved. It is
ORDERED that the motion is denied.