Opinion
Index No. E201900739
10-05-2023
Ulysses Betances, Plaintiff, v. Landsman Building Services Group, Inc., D/B/A BSG Building Services Group, Landsman Development Corp., Cominda-Southview Towers LP, E.L. Tower LLC, E.L. Tower Housing Development Fund Company, Inc., Defendants. LANDSMAN DEVELOPMENT CORP., COMINDA-SOUTHVIEW TOWERS LP, E.L. TOWER LLC, E.L. TOWER HOUSING DEVELOPMENT FUND COMPANY, INC., Third-Party Plaintiffs, v. JT MAURO CO., INC, Third-Party Defendant.
Patrick Allan Little, Esq., of Cellino Law LLP for Plaintiff. Erin Flynn Casey, Esq., of Adams Leclair LLP for Defendant LANDSMAN BUILDING SERVICES GROUP, INC., D/B/A BSG BUILDING SERVICES GROUP Valerie Lynn Barbic, Esq., of Law Offices of John Wallace, for Defendants/Third-Party Plaintiffs LANDSMAN DEVELOPMENT CORP., COMINDA-SOUTHVIEW TOWERS LP, E.L. TOWER LLC, E.L. TOWER HOUSING DEVELOPMENT FUND COMPANY, INC. Kris E. Lawrence, Esq., of Goldberg Segalla LLP for Third-Party Defendant JT MAURO CO., INC.
Unpublished Opinion
Patrick Allan Little, Esq., of Cellino Law LLP for Plaintiff.
Erin Flynn Casey, Esq., of Adams Leclair LLP for Defendant LANDSMAN BUILDING SERVICES GROUP, INC., D/B/A BSG BUILDING SERVICES GROUP
Valerie Lynn Barbic, Esq., of Law Offices of John Wallace, for Defendants/Third-Party Plaintiffs LANDSMAN DEVELOPMENT CORP., COMINDA-SOUTHVIEW TOWERS LP, E.L. TOWER LLC, E.L. TOWER HOUSING DEVELOPMENT FUND COMPANY, INC.
Kris E. Lawrence, Esq., of Goldberg Segalla LLP for Third-Party Defendant JT MAURO CO., INC.
Hon. Craig J. Doran, Justice.
This action, commenced by summons and complaint on August 7, 2019, seeks damages for personal injuries allegedly sustained by Plaintiff Ulysses Betances ("Plaintiff") when his left hand was electrocuted while working as an electrician at the Southview Towers construction site in Rochester, NY on December 21, 2018. The Southview Towers project involved renovating numerous apartment units and many tradesmen were present at the site. According to Plaintiff's deposition testimony, he cut off the power to the apartment unit where he was working prior to beginning his work on the day in question, and while he was installing a fire alarm in the unit, a JT Mauro plumbing worker entered the apartment and turned the breaker box on, causing Plaintiff's electrocution.
Defendant Landsman Building Services Group, Inc., D/B/A BSG Building Services Group ("BSG") was the general contractor on the Southview Towers project. Plaintiff was employed by nonparty Tradesmen International, LLC ("Tradesmen") and was placed on the Southview Towers project pursuant to a contract between BSG and Tradesmen whereby Tradesmen would provide skilled construction workers to BSG on an as-needed basis. The Southview Towers property was owned by Defendants E.L. Tower Housing Development Fund Co., Inc. ("Fund") and E.L. Tower LLC ("Tower"), and the project was owned by Defendant Landsman Development Corp. ("LDC") (Defendants Fund, Tower, and LDC are collectively referred to herein as "the Landsman Defendants").
By stipulation filed April 19, 2023, the action was discontinued as to Defendant Comida-Southview Towers LP. The remaining causes of action asserted in the Complaint are as follows:
• Causes of Action 1-3 against BSG asserting negligence, Labor Law § 200 violation, Labor Law § 241 (6) violation
• Causes of Action 4-6 against LDC asserting negligence, Labor Law § 200 violation, Labor Law § 241 (6) violation
• Causes of Action 10-12 against Tower asserting negligence, Labor Law § 200 violation, Labor Law § 241 (6) violation
• Causes of Action 13-15 against Fund asserting negligence, Labor Law § 200 violation, Labor Law § 241 (6) violation
Issue was joined when Defendant LDC filed an Answer on August 27, 2019, Defendants Tower and Fund filed an Answer on November 2, 2020, and Defendant BSG filed an Amended Answer on October 31, 2019. LDC's Answer asserts the following cross claims: (1) against all co-defendants for contribution; (2) against all co-defendants for common law indemnity; (3) against BSG for contractual indemnification; and (4) against BSG for failure to procure liability insurance. Tower and Fund also assert a cross claim against BSG for common law indemnification and contribution.
On February 16, 2022, Defendants/Third-Party Plaintiffs LDC, Tower, and Fund filed a third-party action against JT Mauro, Inc. ("JT Mauro"), a plumbing subcontractor on the Southview Towers project, asserting the following causes of action: (1) breach of contract for failure to procure insurance; (2) contractual indemnity; and (3) common law indemnity; and (4) contribution. JT Mauro filed an Answer on June 6, 2022 asserting a counter claim against LDC, Tower, and Fund for indemnification or contribution.
Plaintiff filed a Note of Issue on March 22, 2023.
There are two motions pending before the Court. The first is NYSCEF
Summary Judgment Standard
"On a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party'" (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]). "Summary judgment is a drastic remedy, to be granted only where the moving party has 'tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact'... and then only if, upon the moving party's meeting of this burden, the non-moving party fails 'to establish the existence of material issues of fact which require a trial of the action'" (id.). "A motion for summary judgment must be denied 'if there is any significant doubt as to the existence of a triable issue, or if there is even arguably such an issue'" (Vanderwater v Sears, 277 A.D.2d 1056, 1056 [4th Dept 2000]; see Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957], rearg denied 3 N.Y.2d 941 [1957]); Hann v S&J Morrell, Inc., 207 A.D.3d 1118, 1119 [4th Dept 2022]).
A. The Landsman Defendants' Motion for Summary Judgment
The Landsman Defendants, in support of their motion, argue that Plaintiff's Labor Law §200 and negligence causes of action must be dismissed because the Landsman Defendants did not supervise, control, or provide equipment for Plaintiff's work. They further argue that Plaintiff's Labor Law § 241 (6) cause of action must be dismissed because the Industrial Code provisions relied upon by Plaintiff do not apply to the facts of this case. Lastly, the Landsman Defendants seek a conditional order of contractual and common law indemnity against BSG and JT Mauro based on the indemnification provisions in the contract between LDC and BSG and the subcontract between BSG and JT Mauro, and the Landsman Defendants' assertion that any liability on their behalf is, at most, vicarious in nature and they are entitled to recover in common law indemnity against BSG and JT Mauro if those Defendants are found liable.
As an initial matter, counsel for the Plaintiff indicated at oral argument on July 20, 2023 that Plaintiff does not oppose the Landsman Defendants' motion insofar as it seeks dismissal of the negligence and Labor Law § 200 causes of action, and the parties stipulated on the record to the dismissal of those claims. Consequently, the Court will address only the Labor Law § 241 (6) claims and, if necessary, the request for a conditional order of indemnity.
1. Labor Law § 241 (6) Claims
"A plaintiff asserting a cause of action under Labor Law § 241 (6) must demonstrate a violation of a rule or regulation of the Industrial Code which gives a specific, positive command, and is applicable to the facts of the case" (Shaw v Scepter, Inc., 187 A.D.3d 1662, 1665 [4th Dept 2020] [internal quotations omitted]). "[T]he duty to comply with the Commissioner's regulations imposed by Labor Law § 241 (6) is nondelegable and there is no need to show that an owner exercised supervision or control over the worksite to establish a claim" (Toussaint v Port Auth. of New York and New Jersey, 38 N.Y.3d 89, 94 [2022]).
Here, Plaintiff's Verified Bills of Particulars directed to the Landsman Defendants identify three Industrial Code provisions that were allegedly violated: Industrial Code (12 NYCRR) Sections 23-1.5, 23-1.7, and 23-1.13. The Landsman Defendants moved for summary judgment on all three provisions and Plaintiff only opposes the motion insofar as it seeks dismissal of the claimed violation of Section 23-1.13. As such, the Landsman Defendants are entitled to summary judgment on Plaintiff's Labor Law § 241 (6) claims to the extent they are based on alleged violations of Sections 23-1.5 and 23-1.7 of the Industrial Code.
The only provision at issue, then, is Section 23-1.13. Plaintiff's Bills of Particulars do not specify which subsection(s) of this provision Plaintiff relies upon. Upon review of the entire provision, there are only three provisions that appear to be potentially applicable.
Section 23-1.13 (b) (3) requires that the employer "post and maintain proper warning signs" in any area where an "exposed or concealed" power circuit exists. The Court finds that this section does not apply to the facts of this case, as the evidence establishes that there were no "exposed or concealed" power circuits; rather, Plaintiff's electrocution allegedly resulted from another worker entering the apartment where Plaintiff was working and turning on the power at the circuit breaker box. Section 23-1.13 (b) (4) requires that, if an employee's work may result in contact with an electrical power circuit, the employee must be "protected against electric shock by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means." In light of Plaintiff's testimony that he de-energized the circuit prior to beginning his work on the day in question, there can be no violation of this section.
The Court finds, however, that Section 23-1.13 (b) (5) applies to this case. That provision states that, "[i]f protection for employees consists of de-energizing circuits" - as is the case here - "employers shall cause open switches or other circuit interrupting devices to be guarded against inadvertent closing until such employees are no longer exposed" (Industrial Code § 23-1.13 [b] [5]). According to Plaintiff's testimony, which the Court must accept as true for purposes of Defendants' motion for summary judgment, Plaintiff was not supplied with a breaker lock to install on the breaker box while performing his work because only his supervisor, BSG employee Scott Benedict, had the breaker locks and the practice at the worksite was for Benedict to install the lock after the electrical work in the apartment unit was completed (not during the work). Thus, while Plaintiff took the protective measure of de-energizing the circuit prior to performing his work, there was no circuit breaker lock placed on the breaker box, as required by Section 23-1.13 (b) (5), to guard against the circuit being inadvertently closed (which, according to Plaintiff, is exactly what happened here). Defendants' motion must therefore be denied to the extent that the Labor Law § 241 (6) claims are based on an alleged violation of Industrial Code § 23-1.13 (b) (5).
In sum, the Landsman Defendants satisfied their prima facie burden on summary judgment as to Plaintiff's Labor Law § 241 (6) claims insofar as the claims are based upon violations of Industrial Code §§ 23-1.13 (b) (3) & (4). Plaintiff's response papers fail to raise any triable issues of fact as to these provisions and, as such, the Landsman Defendants' motion for summary judgment is granted as to those claims. However, the Landsman Defendants failed to meet their burden as to the alleged violation of Section 23-1.13 (b) (5) and their motion is denied to the extent Plaintiff's Labor Law § 241 (6) claims are based on that provision.
2. Request for Conditional Order of Indemnity
The Landsman Defendants move for summary judgment seeking a finding of conditional indemnity against BSG and JT Mauro based on contractual and common law indemnity. Their contractual indemnity arguments are based upon the indemnification provisions contained in the contract between Defendants LDC and BSG, as well as the contract between BSG and JT Mauro. The Landsman Defendants further argue that they are entitled to common law indemnity because they were, at most, vicariously liable and are entitled to conditional indemnification from the parties alleged to be actively negligent - BSG and JT Mauro. In response, BSG argues that Defendants Tower and Fund are not entitled to contractual indemnity because they are not parties to the contract between BSG and LDC, nor are they beneficiaries of that contract. Third-Party Defendant JT Mauro's response papers contend that Defendants Tower and Fund are not parties to the contract between JT Mauro and BSG and are not "owners" entitled to contractual indemnification.
"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" (Pena v Intergate Manhattan LLC, 194 A.D.3d 576, 578 [1st Dept 2021]). "Unlike common-law indemnification, contractual indemnification is permissible where... there is no finding of negligence on the part of the indemnitor; however, the right to contractual indemnification depends upon the specific language of the contract" (Allington v Templeton Found., 167 A.D.3d 1437, 1441 [4th Dept 2018], citing Brown v Two Exch. Plaza Partners, 76 N.Y.2d 172, 178 [1990]).
a. Contractual Indemnity against Defendant BSG
With regard to the Landsman Defendants' contractual indemnity claim against BSG, the contract at issue is the AIA Standard Form of Agreement between Owner and Contractor, dated December 12, 2017 ("AIA Agreement"). The AIA Agreement defines the "Owner" as Defendant LDC and the "Contractor" as Defendant BSG. As relevant, the indemnity provision contained in Section 9.15.1 states:
To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner,... from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death,... but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.
Based on the plain language of the AIA Agreement, the Court denies the Landsman Defendants' motion insofar as Defendants Tower and Fund assert that they are entitled to summary judgment against BSG for contractual indemnity. Defendants Tower and Fund are not parties to the contract between Defendant LDC and BSG. Further, the Answer filed by Defendants Tower and Fund does not assert any cross claim against Defendant BSG for contractual indemnity and, as such, the Court cannot grant a conditional judgment on a claim that was not even pleaded.
The motion must also be denied as to Defendant LDC inasmuch as Defendants' own motion papers raise issues of material fact as to whether any negligent acts of BSG or its subcontractor(s) caused Plaintiff's injuries. As Defendant BSG points out, the deposition testimony of Michael Brandel (a plumber employed by JT Mauro), Scott Benedict (Plaintiff's supervisor), and Michael Avery (a BSG carpentry foreman), raises triable issues of fact regarding whether the accident even occurred at the Southview Towers jobsite or whether Plaintiff was instead injured while working at another jobsite that was completely unrelated to the Southview Towers project. Significantly, Brandel, who appears to be the plumber named "Mike" who Plaintiff accused of turning on the power at the breaker box while Plaintiff was working on the date of the accident, testified that he was not aware of anyone being injured on the job at the Southview Towers site and that he would have known if someone had been injured. Further, Plaintiff's supervisor, Scott Benedict, testified that he was not aware of the accident until the week after it allegedly occurred and he inferred from conversations with employees on the jobsite that Plaintiff was injured while working a "side job" at a worksite other than Southview Towers.
The Court acknowledges that a conditional order of indemnity may be appropriate in cases where there is no dispute as to the occurrence of an accident, and the only disputed facts concern which party to the case is at fault (see e.g. Vestal v Yonkers Contr. Co. Inc., 268 A.D.2d 872 [3d Dept 2000]; Walls v Sano-Rubin Const. Co., Inc., 4 A.D.3d 599 [3d Dept 2004]). This case is, however, unique given that there is a genuine issue of material fact whether the accident occurred at all at the Southview Towers site. Consequently, Defendant LDC failed to meet its initial burden and its motion for summary judgment on its contractual indemnity claim against BSG is denied.
b. Contractual Indemnity against Third-Party Defendant JT Mauro
The Landsman Defendants' contractual indemnity claim against JT Mauro is based upon the subcontract, dated April 15, 2018, between JT Mauro, which the contract defines as the "Subcontractor," and BSG, defined in the contract as the "Contractor." The indemnity clause is contained in Article 2.1 of the subcontract, and states in relevant part:
To the fullest extent permitted by law, the Subcontractor shall defend, indemnify and hold harmless BSG Building Services Group the Owner and the Architect and their agents and employees from and against all claims, damages, losses and expenses including but, not limited to, attorney's fees, arising out of or resulting from the performance of the Work provided that any such claims, damage, loss or expense (1) is attributable to bodily injury, sickness, disease or death..., and (2) is caused in whole or in part by any negligent act or omission of the Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by the party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist to any party or person described in this paragraph.
The Court denies the Landsman Defendants' motion for summary judgment on their contractual indemnity claims against JT Mauro. As to Defendants Tower and Fund, the motion papers fail to establish that either of these entities are an "owner" entitled to the protections of the subcontract's indemnity provision. Indeed, JT Mauro's Certificate of Liability Insurance attached to the Third-Party Complaint identifies the "owner" as "Landsman Development Corp./Landsman Real Estate Services, Inc./Landsman Building Services Group." Defendants Tower and Fund appear nowhere in the subcontract itself or in the Certificate of Liability Insurance.
With regard to Defendant LDC, who is identified by JT Mauro as an "owner" in its Certificate of Liability Insurance, the Court denies the motion for summary judgment because, as outlined above, there are issues of material fact as to whether the accident even occurred on the Southview Towers worksite. These factual issues preclude a summary finding in favor of Defendant LDC on its contractual indemnity claim against JT Mauro.
c. Common Law Indemnity Claims against BSG and JT Mauro
For the same reasons that a conditional order of contractual indemnity is premature in the particular circumstances of this case, summary judgment is denied as to the Landsman Defendants' common law indemnity claims against BSG and JT Mauro. The Landsman Defendants have failed to satisfy their initial burden inasmuch as their motion papers raise genuine issues of material fact whether Plaintiff's accident occurred at the Southview Towers worksite, or at another worksite unrelated to any party in this case.
B. Defendant BSG's Motion for Summary Judgment Seeking Dismissal of the Complaint
Defendant BSG contends that Plaintiff's claims against BSG are barred by the exclusive remedy provision of the Workers' Compensation Law because, although Plaintiff was an employee of nonparty Tradesmen International, Plaintiff was a "special employee" of BSG. In response, Plaintiff argues that Tradesmen International was Plaintiff's only employer, and BSG was merely a general contractor and was not a "special employer" of Plaintiff at the jobsite.
"The Court of Appeals has long held that, as to an employer, where workmen's compensation provides a remedy, the remedy that it provides, save for the rare case, is exclusive. Where liability is imposed upon an employer to provide workmen's compensation and compensation is provided, that liability is exclusive and in the stead of any other employer liability whatsoever" (Suarez Alfonso v Lopez, 149 A.D.3d 1535, 1536 [4th Dept 2017] [internal quotation marks omitted]).
Workers' compensation is the exclusive remedy for recovery against both a general employer and a special employer. The Court of Appeals, in Thompson v Grumman Aerospace Corp., 78 N.Y.2d 553 (1991), describes the interplay between general and special employment in the workers' compensation context:
We have consistently found as a general proposition that a general employee of one employer may also be in the special employ of another, notwithstanding the general employer's responsibility for payment of wages and for maintaining workers' compensation and other employee benefits. A special employee is described as one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer.(Id. at 557 [internal citations omitted]).
" 'Many factors are weighed in deciding whether a special employment relationship exists, and generally no one is decisive... While not determinative, a significant and weighty feature has emerged that focuses on who controls and directs the manner, details and ultimate result of the employee's work'" (Majewicz v Malecki, 9 A.D.3d 860, 861 [4th Dept 2004], quoting Thompson, 78 N.Y.2d at 558). Another factor considered is whether the general employer retains any authority to fire the employee from an assignment at the special employer's jobsite (see Thompson, 78 N.Y.2d at 559; Ferguson v Natl. Gypsum Services Co., 169 A.D.3d 1355, 1356 [4th Dept 2019]).
Further, while "a person's categorization as a special employee is usually a question of fact... the determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact" (Thompson, 78 N.Y.2d at 557-558).
Here, Defendant BSG has met its initial burden on summary judgment by submitting evidence establishing that Plaintiff was a special employee of BSG.
BSG submits the affidavit of its Controller, Thomas Blaszak, who describes the relationship between BSG and Plaintiff's general employer, Tradesmen International. Blaszak avers that BSG is a full-service general contractor offering general contracting, electrical, painting and carpentry services. BSG employs construction workers on a permanent basis and, on larger projects, also contracts with temporary employment agencies such as Tradesmen International to provide skilled construction workers, including electricians, on an as-needed basis. This arrangement is documented in a Client Services Agreement entered into by BSG and Tradesmen, which Agreement is dated May 26, 2010 and is of open-ended duration ("Agreement"). The Agreement provides that BSG "is solely responsible for directing, supervising and controlling Tradesmen employees as well as their work and Tradesmen does not warrant or insure the work," and that BSG, "at its sole discretion, may terminate a worker assigned under this contract at any time for any lawful reason." Plaintiff, a skilled electrician, was assigned by Tradesmen to the Southview Towers project in November 2018 and this assignment was governed by the Agreement.
BSG also submits Plaintiff's deposition testimony, which reinforces that BSG was solely responsible for directing, controlling, and supervising Plaintiff's work. Plaintiff testified that he had worked at the Southview Towers site for more than two weeks prior to the accident. Plaintiff's supervisor at the jobsite was Scott Benedict, a BSG electrical supervisor. Before Plaintiff started his work at the Southview Towers project, Benedict took him through a model apartment and showed him how Benedict had performed the electrical work in the model apartment. Each day, Plaintiff would first report to Benedict, who would instruct Plaintiff on what work to do that day. Benedict was the only person at the jobsite who instructed Plaintiff on the work to be completed, and if Plaintiff had questions about a task, he would ask Benedict. Plaintiff brought his own tools and sometimes BSG provided tools. Benedict signed Plaintiff's timesheets.
Consistent with Plaintiff's testimony, Benedict testified that, before Plaintiff started his work at the jobsite, he walked Plaintiff through a model apartment and explained what was expected of Plaintiff. Benedict observed and checked Plaintiff's work at the jobsite. Benedict would meet with Plaintiff every day in the morning and instruct him on the work for the day, as well as answer any questions Plaintiff had. Although Plaintiff brought his own hand tools, BSG provided power tools and materials to Plaintiff.
Based on these undisputed facts, the Court agrees with Defendant BSG that its relationship with Plaintiff falls squarely within the definition of a special employer. BSG "demonstrated that it exercised complete and exclusive control over the manner, details and ultimate results of plaintiff's work" (Ferguson, 169 A.D.3d at 1356 [internal quotation marks omitted]). Tradesman did not supervise or control Plaintiff's work in any way at the jobsite and, pursuant to the Agreement, had no authority to do so. Rather, Plaintiff reported directly to BSG supervisor Benedict, who instructed Plaintiff on a daily basis, answered Plaintiff's questions, observed and checked Plaintiff's work, and provided Plaintiff with power tools and materials. Only BSG had the authority to fire Plaintiff from his assignment on the Southview Towers project.
Plaintiff's response to Defendant BSG's motion fails to raise any triable issues of fact regarding Plaintiff's special employee status.
Consequently, the "undisputed critical facts compel [the] conclusion" that Plaintiff was a special employee of BSG and "present no triable issue of fact" (Thompson, 78 N.Y.2d at 557-558). It is undisputed that Plaintiff and Tradesmen settled Plaintiff's workers' compensation claim regarding the subject injury for a payment of $12,000. As such, Plaintiff's claims against BSG, his special employer, are barred by the Workers' Compensation Law and must be dismissed (see Ferguson, 169 A.D.3d at 1355-1356 [dismissing claims against special employer]; Majewicz, 9 A.D.3d at 861 [same]).
Accordingly, it is hereby
ORDERED, as to Motion No. 1, that Plaintiff's negligence and Labor Law § 200 causes of action (4th, 5th, 10th, 11th, 13th, and 14th causes of action) are hereby dismissed by stipulation of the parties; it is further
ORDERED, as to Motion No. 1, that the Landsman Defendants' motion for summary judgment is granted as to Plaintiff's Labor Law § 241 (6) causes of action except insofar as those claims are based on a violation of Industrial Code § 23-1.13 (b) (5); and it is further
ORDERED, as to Motion No. 2, that Defendant BSG's motion for summary judgment is granted in its entirety, and Plaintiff's 1st, 2nd, and 3rd causes of action against BSG are dismissed with prejudice.
This shall constitute the Decision and Order of the Court.