Opinion
150991/2016
05-20-2019
Judith JUAN GARCIA, Plaintiff, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, the Corporate Commons of Staten Island, LLC, the Nicotra Corporate Commons, LLC and the Nicotra Group LLC, Defendants. The Port Authority of New York and New Jersey, the Corporate Commons of Staten Island, LLC, the Nicotra Corporate Commons, LLC and the Nicotra Group LLC, Third-Party Plaintiffs, v. Control Electrical Contracting Corp., Third-Party Defendant.
The following papers numbered 1 to 13 were fully submitted on the 18th day of April, 2019:
Papers Numbered
Plaintiff's Notice of Motion for Partial Summary Judgment on Liability Against Defendants/Third-Party Plaintiffs Pursuant to Labor Law §§ 200, 241(6) (Motion Seq. No. 004) (Affirmation in Support, Affidavit of Les Winter with Supporting Exhibits) (Dated: January 28, 2019) 1
Third-Party Defendants' Motion for Summary Judgment Dismissing Third-Party Plaintiffs' Complaint, and for Leave to Amend Answer and Consider Proposed Answer Served (Motion Seq. No. 005) (Affirmation in Support with Supporting Exhibits) (Dated: January 29, 2019) 2
Defendants/Third-Party Plaintiffs Motion for Summary Judgment Against Third-Party Defendant for Contractual and Common Law Indemnification, and Against Plaintiff to Dismiss Claims Under Labor Law §§ 200, 241(6) and Common Law Negligence (Motion Seq. No. 006) (Affirmation in Support, Affidavits of Richard Nicotra and James E. Crabtree, P.E., Memorandum of Law in Support with Supporting Exhibits) (Dated: January 30, 2019) 3
Third-Party Defendant's Affirmation in Opposition to Defendants/Third-Party Plaintiffs Motion for Summary Judgment (Affidavit of Steven Pietropaolo, P.E. with Supporting Exhibits) (006 ) (Dated: March 25, 2019) 4
Third-Party Defendant's Affirmation in Partial Opposition to Plaintiff's Motion for Summary Judgment with Supporting Exhibits (004) (Dated: March 25, 2019) 5
Plaintiff's Affirmation in Opposition to Defendants/Third-Party Plaintiffs Motion for Summary Judgment (Affidavit of Les Winter with Supporting Exhibits) (006) (Dated: March 27, 2019) 6
Plaintiff's Affirmation in Partial Opposition to Third-Party Defendant's Motion for Summary Judgment (005) (Dated: March 27, 2019) 7
Defendants/Third-Party Plaintiffs Affirmation in Opposition to Plaintiff's Motion for Summary Judgment with Supporting Exhibits (004) (Dated: March 27, 2019) 8
Defendants/Third-Party Plaintiffs Affirmation in Opposition to Third-Party Defendant's Motion for Summary Judgment (Affidavit of Richard Nicotra with Supporting Exhibits) (005) (Dated: March 27, 2019) 9
Plaintiff's Reply Affirmation to Defendants/Third-Party Plaintiffs Opposition to Summary Judgment Motion with Supporting Exhibits (004) (Dated: April 10, 2019) 10
Third-Party Defendant's Reply Affirmation to Plaintiff's Partial Opposition to Motion for Summary Judgment with Supporting Exhibits (005) (Dated: April 10, 2019) 11
Defendants/Third-Party Plaintiffs Reply Memorandum of Law In Further Support of Summary Judgment Motion (006) (Dated: April 10, 2019) 12
Third-Party Defendant's Reply Affirmation to Defendants/Third-Party Plaintiffs Opposition to Motion for Summary Judgment with Supporting Exhibits (005) (Dated: April 11, 2019) 13
Upon the foregoing papers, the motion of plaintiff, Judith Juan Garcia (hereinafter "plaintiff") (Motion Seq. 004) for partial summary judgment on the issue of liability pursuant to Labor Law §§ 200 and 241(6) as against the defendants/third-party plaintiffs the Port Authority of New York and New Jersey, the Corporate Commons of Staten Island, LLC, the Nicotra Corporate Commons, LLC and the Nicotra Group, LLC (hereinafter "Nicotra") is denied. The motion of third-party defendant Control Electrical Contracting Corp. (hereinafter "Control") (Mot. Seq. 005) for leave to amend and serve its answer, and for summary judgment dismissing the third-party complaint is granted in part and denied in part as set forth below. The motion of Nicotra (Motion Seq. 006) for summary judgment against Control for contractual and common-law indemnification, and for summary judgment against plaintiff dismissing all claims brought under Labor Law § 200 and § 241(6) is denied.
This matter arises out of a construction site accident occurring on January 5, 2016 in the first-floor electrical closet of 2 Teleport Drive, Staten Island, New York. This three-story commercial building is owned, operated, and managed by Nicotra. Plaintiff, a foreman for the third-party defendant electrical contractor, Control, claims to have sustained extensive personal injuries by way of, inter alia , second and third degree (electrocution) burns to his face, arms and torso, when an electrical arc created a flash explosion while plaintiff was connecting wiring between a newly installed bus duct switch, and an electrical meter pan located next to the bus duct. The electrical work was being done as part of a tenant fit-out project for prospective tenant, Pearson Professional Centers, so that electrical power would be supplied to the vacant tenant space being worked on.
Plaintiff's expert, Les Winter, P.E., offers the following description: "Bus duct is used as a substitute for wires in conduits to carry electrical current, typically over long distances. The exterior of the bus duct is a rectangular steel enclosure. Within this enclosure are conductors known as bus bars. The bus bars are supported on insulators which are supported, in turn, by the enclosure" (see January 25, 2019 affidavit of Les Winter, P.E.; Plaintiff's Exhibit A).
It is undisputed that at the time of the accident, the bus bar labeled "neutral" was not neutral, but rather wired as a phase bus, and one of the phase buses was wired as neutral. When plaintiff attempted to connect what he thought was the "neutral" from the meter pan to the neutral of the switch, a short circuit and arc flash ensued . Plaintiff's supervisor, Control's general foreman Steven Dennehy, who arrived at the scene shortly after the accident, testified at his February 28, 2018 deposition that plaintiff warned him: "The neutral is hot" (see Plaintiff's Exhibit K, p. 51). Dennehy found that the bus duct switch was in the "off" position, but when he tested the neutral lug it was "hot" and had a 277-voltage reading (id. , p. 54). He explained that if the neutral is hot and the switch is in the off position, then the bus duct is wired backwards (id. , p. 55). The electrical wiring had therefore been "swapped" in the subject bus duct—just as it had been swapped on the third-floor of 2 Teleport Drive. Posted in the third-floor electrical closet was a sign reading: "DANGER DO NOT PLUG IN BUS SWITCH PHASING INCORRECT." No such sign was present in the subject first floor electrical closet.
At his December 6, 2017 deposition, plaintiff testified: "I went to connect the white cable, and when I started loosening the screw, the white cable touched that for a little bit and then the explosion came over" (see Plaintiff's Exhibit J, p. 33).
For the work plaintiff was performing, Dennehy did not request a shut-down of the entire electrical system in the building, because the bus switch was in the "off" position, presumably affording plaintiff safety while performing the work (id. , p. 90, 95). Control did not perform the original installation of the bus ducts (id. , pp. 86-87).
Plaintiff claims that Dennehy told him "everything was off" and he could perform the work (see Plaintiff's Exhibit J, pp 24, 33, 37). Dennehy denies telling plaintiff that the main bus duct was de-energized, explaining that when he and plaintiff installed the bus duct switch on the main bus duct three days before the accident, they did not de-energize the bus duct (see Plaintiff's Exhibit K, p. 37). It was plaintiff's responsibility to turn off the main bus duct switch (id. , p. 42), and "the work that day, wiring the main bus duct switch, was going to be done with the main bus duct switch on but with the bus duct switch de-energized, because it is plugged onto a live bus duct" (id. , p. 43). According to Dennehy, the act of wiring a switch attached to a bus duct in the "off" position is perfectly safe (id. , p. 90), because "[t]hat's the purpose of the bus duct, so you don't have to shut the building down, and you can install these switches and perform your work without doing building shut down" (id. , p. 44). This was purportedly the preferred method of Nicotra, who "never [wants to] shut down the building [because] the NYPD [sic] is in the building" (id. , pp. 84, 93-94). Thus, had the phasing been correct, as long as the switch was "off" no flash would have occurred and "we wouldn't be sitting here today" (id. , p. 114). Plaintiff would have known that the bus duct was energized [while he was performing the work] because all the lights were on in the building; "[I] f it had been de-energized, that room would have only had emergency lighting on" (id. , p. 112).
PLAINTIFF'S AND NICOTRA'S MOTIONS FOR SUMMARY JUDGMENT UNDER LABOR LAW § 200
Plaintiff moves for partial summary judgment against Nicotra on the issue of liability for his Labor Law § 200 claim (Motion Seq. 004). Nicotra cross moves to dismiss so much of plaintiff's complaint as is grounded upon alleged violation of Labor Law § 200 (Motion Seq. 006). Those branches of the parties' motions seeking summary judgment under Labor Law § 200 are denied.
Liability under Labor Law § 200 "generally falls into two broad categories: instances involving the manner in which the work is performed , and instances in which workers are injured as a result of dangerous or defective premises conditions at the work site" ( Abelleira v. City of New York , 120 AD3d 1163, 1164 [2d Dept. 2014] ; [emphasis supplied] ). Where the worker is injured as a result of the manner in which the work is performed, including the equipment used, the owner "is liable if it actually exercised supervisory control over the injury-producing work" ( Cappabianca v. Skanska USA Bldg. Inc. , 99 AD3d 139, 144 [1st Dept. 2012] ; see also Foley v. Consolidated Edison Co., of NY Inc., 84 AD3d 476, 477 [1st Dept. 2011] ).
If, however, the worker's injury stems from a dangerous or defective premises condition at the work site, he need not show that an owner controlled or directed the manner of his work (see Urban v. No. 5 Times Sq. Dev. LLC , 62 AD3d 553 [1st Dept. 2009] ), but rather, just that the owner "knew or should have known" of the unsafe condition that brought about plaintiff's injury ( Gallagher v. Levien & Co., 72 AD3d 407, 409 [1st Dept. 2010] ) and failed to remedy it ( Savias v. City of New York , 167 AD3d 546 [1st Dept. 2018] ).
Here, plaintiff asserts that the backwards configuration of the electrical system constituted a dangerous condition on the premises , of which Nicotra had notice as evidenced by its apparent placement of the "Danger" sign in the third-floor electrical closet. Nicotra maintains that plaintiff's accident resulted solely from manner in which he performed his work , for which all parties agree that Nictora exercised no supervisory control.
While it has been held that live electrical cables are not a "dangerous condition" (see Rolewicz v. State of New York , 73 AD3d 1269 [3d Dept. 2010] ) and similarly, that electricity flowing into a light fixture was not dangerous "until plaintiff decided to change the ballast without turning off the current" ( Pilator v. 866 U.N. Plaza Assocs., LLC , 77 AD3d 644, 646 [2d Dept. 2010] ), the uncontested facts sub judice demonstrate that the electrical phasing had been installed backwards, and that this constituted a dangerous condition on the premises.
The question for this Court, therefore, is whether Nicotra possessed knowledge of this dangerous condition, and whether notice may be imputed to Nictotra based on the (disputed) fact that it had previously placed a "Danger" sign in an electrical closet two floors above the accident scene.
"Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and ‘should only be employed when there is no doubt as to the absence of triable issues of material fact.’ " ( Kolivas v. Kirchoff, 14 AD3d 493 [2d Dept. 2005], citing Andre v. Pomeroy , 35 NY3d 361, 364 [1974]). The standards for summary judgment are well settled. The proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ; Winegrad v. New York Univ. Med. Center , 64 NY2d 851, 853 [1985] ; Zuckerman v. City of New York , 49 NY2d 557, 562 [1980]. Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad, supra , 64 NY2d at 853 ). Once this showing has been made, however, the burden shifts to the party opposing the motion, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action ( Zuckerman , supra , 49 NY2d at 562 ).
This Court is mindful that its function on a summary judgment motion is "to determine whether material factual issues exist, not to resolve such issues" ( Ruiz v. Griffin , 71 AD3d 1112, 1115 [2d Dept. 2010], citing Lopez v. Beltre , 59 AD3d 683, 685 [2d Dept. 2009] ; see Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395, 404 [1957] ; Miele v. American Tobacco Co. , 2 AD3d 799, 803 [2d Dept. 2003] [issue finding, not issue determination] ), and that the motion for summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" ( Scott v. Long Is. Power Auth., 294 AD2d 348 [2d Dept. 2002] ; see Baker v. D.J. Stapleton, Inc., 43 AD3d 839 [2d Dept. 2007] ). In deciding the summary judgment motion, the facts alleged by the nonmovant and inferences that may be drawn therefrom must be accepted as true ( Dykeman v. Heht , 52 AD3d 767, 769 [2d Dept. 2008] [internal citations omitted ] ).
Here, plaintiff and Nicotra, as proponents of their respective motions, have tendered sufficient evidence to demonstrate the absence of material issues of fact which might preclude an award in their favor through, inter alia , the deposition transcripts, photographs and expert witness affidavits tendered on behalf of each movant (i.e. , January 25, 2019 affidavit of Les Winter, P.E.,[Plaintiff's Exhibit A] and January 28, 2019 affidavit of James Crabtree, P.E., for Nicotra). By the same token, however, the parties have met their respective burdens of raising a material issue of fact requiring this Court to deny summary judgment under Labor Law § 200.
This Court is unpersuaded by Nicotra's argument that plaintiff's alleged myriad failures (i.e., neglecting to de-energize the bus duct, failure to use electrical tester tool to ascertain voltage prior to commencing work, failure to don protective gloves and clothing) confine this accident to the "manner in which the work is performed" category. Rather, this Court is inclined to view the alleged accident as one caused by a "dangerous condition on the premises." In that regard, however, the testimony of Steven Dennehy raises an issue of fact as to whether Nicotra's notice of the dangerous condition (i.e. , the cross phasing) on the third floor necessarily means that it knew or should have known that the wiring on the first floor was improperly configured also. Accordingly, both plaintiff's motion for an award of partial summary judgment on liability under Labor Law § 200, and Nicotra's motion for summary judgment to dismiss so much of plaintiff's complaint as is grounded on a violation of Labor Law § 200, must be denied.
Dennehey testified that no "Danger" signs were present in any electrical closets other than the one on the third floor (p. 87), and that to him, the "Danger" sign on the third floor simply cautioned people to not touch or work with the bus duct in that particular room (p.88).
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PLAINTIFF'S AND NICOTRA'S MOTIONS FOR SUMMARY JUDGMENT UNDER LABOR LAW § 241(6)
Plaintiff moves for an award of partial summary judgment on the issue of liability for Nicotra's alleged violation of Labor Law § 241(6) (Mot. Seq. 004). Nicotra moves to dismiss so much of plaintiff's complaint as is premised on an alleged violation of Labor Law § 241(6). Those branches of the respective parties' motions for summary judgment under this section of the Labor Law must be denied, as neither party has proven as a matter of law that the violation (or concomitant lack thereof) of Labor Law § 241(6) constituted the sole proximate cause of plaintiff's injuries.
Four elements are needed to establish liability under Labor Law § 241(6) : (1) a specific provision of the New York Industrial Code was violated (see Rizzuto v. L.A. Wenger Contracting Co. , 91 NY2d 343, 350 [1998] ); (2) the violated code provision mandates compliance with concrete specifications (as opposed to general safety standards) (see St. Louis v. Town of Elba, 16 NY3d 411, 414[2011] ; Ross v. Curtis-Palmer Hydro Electric Co., 81 NY2d 494 [1993] ); (3) the violated Industrial Code provision applies to the facts of the case (see Lynch v. Abax, Inc. , 268 AD2d 366 [1st Dept. 2000] ), and (4) the violated code provision proximately caused plaintiff's accident (see Ramos v. Patchogue-Medford Sch. Dis., 73 AD3d 1010 [2d Dept. 2010] ; Buckley v. Columbia Grammar & Preparatory, 44 AD3d 263, 271 [1st Dept. 2007], lv denied 10 NY3d 710 [2008] ).
Labor Law § 241(6) provides:
"All contractors and owners and their agents...shall comply with the following requirements:
"6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work shall comply therewith.
In this case, plaintiff primarily relies upon two sections of the Industrial Code of New York, 12 NYCRR § 23-1.13(b)(3) and (4), which provide:
Before work is begun the employer shall ascertain by inquiry or direct observation, or by instruments, whether any part of an electric power circuit, exposed or concealed, is so located that the performance of the work may bring any person, tool or machine into physical or electrical contact therewith. The employer shall post and maintain proper warning signs where such circuit exists. He shall advise his employees of the locations of such lines, the hazards involved and the protective measure to be taken.
No employer shall suffer or permit an employee to work in such proximity to any part of an electric power circuit that he may contact such circuit in the course of his work unless the employee is protected against electric shock by deenergizing the circuit and grounding it or by guarding such circuit by effective insulation or other means.
These provisions have been found to be clear and specific in mandating that before work is started, it is to be ascertained whether the work will bring a worker into contact with an electric power circuit and, if so, that the worker not be permitted to come into contact with the circuit without it being deenergized ( Hernandez v. Ten Ten Co., 31 AD3d 333 [1st Dept. 2006] ). Indeed, appellate authority states that 23-1.13 (b)(4) is sufficiently specific to sustain a Labor Law 241(6) claim (see Lorefice v. Reckson Operating Partnership, L.P., 269 AD2d 572 [2d Dept. 2000] ).
Thus, the two foregoing electrical hazard sections of the Industrial Code have been placed in issue, inasmuch as no facts in addition to those alleged in plaintiff's complaint, bill of particulars, or inquired into at his December 6, 2017 deposition, are or need be alleged to make out a violation of 12 NYCRR § 23-1.13 (b)(4) (see Snowden v. New York City Transit Authority , 248 AD2d 235 [1st Dept. 1998] ).
While a violation of the Industrial Code has been established, however, such a violation is merely some evidence of negligence, and it is for the trier of fact to determine the cause of plaintiff's injury ( Rizzuto v. L.A. Wenger Contracting Co., 91 NY2d 343, 351 [1998] ). Indeed, "such violation does not conclusively establish a defendant's liability as a matter of law, but constitutes some evidence of negligence and thereby reserves, for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances" ( Seaman v. Bellmore Fire Dist. , 59 AD3d 515, 516 [2d Dept. 2009] [internal quotation marks omitted ], quoting Rizzuto , 91 NY2d at 351 ; see also Long v. Forest-Fehihaber, 55 NY2d 154, 160 [1982] ).
In opposition to plaintiff's motion Nicotra argues, inter alia, that Industrial Code 12 NYCRR 23-1.13(b) refers and applies to "employers" (i.e. , Control) rather than to "owners" (i.e. , Nicotra) and, more importantly, that the proximate cause of plaintiff's injuries was his admitted failure to check the voltage and don protective gear prior to commencing work.
It has been recognized that these provisions of the Industrial Code which refer only to the duty of employers, also imposes a duty upon owners ( Rice v. City of Cortland , 262 AD2d 770, 773 [3d Dept. 1999] ). The larger question which neither party has resolved as a matter of law, however, is whether the sole proximate cause of plaintiff's accident was Nicotra's failure to "ground, guard, or deenergize" the appropriate bus duct prior to plaintiff's commencement of work, or whether plaintiff's conduct was a "substantial factor for the accident which resulted in his injuries ( Baumann v. Metropolitan Life Ins. Co. , 17 AD3d 260 [1st Dept. 2005] ; see also Lorefice v. Reckson Operating Partnership, L.P. , 269 AD2d 572, 573 [2d Dept. 2000] ["Although the plaintiffs established a prima facie violation of 12 NYCRR 23-1.13 (b)(4) by the defendant, there are triable issues of fact as to the defendant's liability"] ).
Thus, even plaintiff's prima facie showing of the specific Industrial Code violations does not necessarily entitle him to partial summary judgment on the issue of Labor Law § 241(6) liability, as the question of whether a violation of the Industrial Code proximately caused injury to a worker lies with the trier of fact ( Rizzuto, supra 91 NY2d at 351 ; see also Johnson v. Flatbush Presbyt. Church , 29 AD3d 862 [2d Dept. 2006] ).
Accordingly, those branches of plaintiff's and Nicotra's summary judgment motions for an award relative to plaintiff's claims under Labor Law § 241(6) are denied.
CONTROL'S AND NICOTRA'S MOTIONS FOR SUMMARY JUDGMENT AS TO CONTRACTUAL AND COMMON LAW INDEMNIFICATION
Control moves for summary judgment dismissing Nicotra's third-party complaint for common law and contractual indemnification, and damages for breach of contract to procure insurance (Mot. Seq. 005). Nicotra moves for summary judgment against Control for an award of common law and contractual indemnification (Mot. Seq. 006). Both motions are denied.
It is long settled that Workers' Compensation Benefits are the "sole and exclusive remedy of an employee against his employer for injuries sustained in the course of [his or her] employment" ( Weiner v. City of New York , 19 NY3d 852, 854 [2012] quoting Gonzalez v. Armac Indus., Ltd., 81 NY2d 1, 8 [1993] [internal quotations omitted ] ). Similarly, third-parties (i.e., Nicotra) may not seek contribution or indemnification from an injured plaintiff's employer (i.e. , Control) regardless of the employer's fault, unless that plaintiff suffered a "grave injury" which is defined as: "death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement , loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability" ( NY Workers' Comp. Law § 11 ). The list of "grave" injuries is narrowly described, and not intended to be extended ( Fleming v. Graham , 10 NY3d 296, 300 [2008] ).
Here, Nicotra urges the Court to find that plaintiff's facial scarring constitutes a "grave" injury for which it may obtain common law indemnification from Control. In support Nicotra points, inter alia , to several photographs of plaintiff, as well as to medical reports describing, inter alia, the treatment and extent of plaintiff's facial scars.
In opposition to Nicotra and in support of its own motion to dismiss that portion of the third-party complaint seeking common law indemnification, Control maintains that plaintiff's facial scarring injuries are indisputably not "grave," as demonstrated by the photographs and additional medical reports.
These summary judgment motions for and against a finding of common law indemnification must be denied, as a jury of reasonable people is required to determine whether plaintiff's facial disfigurement is "abhorrently distressing, highly objectionable, shocking or extremely unsightly" ( Fleming v. Graham , 10 NY3d 296, 303 [2008] ).
Additionally, Nicotra argues entitlement to common law indemnification because its liability, if any, is merely vicarious under these facts.
In order to establish a claim for common-law indemnification, Nicotra must prove as a matter of law, not only that it was not negligent, but also that the proposed indemnitor, Control, was the party responsible for the accident. Thus, even if Nicotra's liability is purely statutory and vicarious, (which has not been established), conditional summary judgment in its favor on the basis of common-law indemnification is premature (see Benedetto v. Carrera Realty Corp. , 32 AD3d 874 [2d Dept. 2006] ). Here, neither party at this juncture has proven "not only that it was not guilty of any negligence beyond the statutory liability but must also 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] ).
Nicotra may only pursue contractual indemnification from Control if, as set forth in Workers Compensation Law § 11, the claim is "based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution or indemnification of the claimant or person asserting the cause of action for the type of loss suffered." The clause must be viewed in conjunction with § 5-322.1 of the General Obligations Law, which provides that any contractual provision requiring a contractor to indemnify or hold harmless an owner or contractor from liability for that owner's own negligence is void (see Cavanaugh v. 4518 Assocs. , 9 AD3d 14, 20 [1st Dept. 2004] ).
Here, three documents have been exchanged between the parties: (1) the June 18, 2015 "Proposal" drawn on Control letterhead, addressed to Nicotra, setting forth a total cost of $ 67,000.00; (2) a nine page "Contract" dated November 6, 2015, drawn on Nicotra letterhead, and executed solely by Richard Nicotra on November 6, 2015, containing an "Insurance" provision at paragraph 17 and an "Indemnity" provision at paragraph 18, and (3) a nine page "Contract" dated January 8, 2016, identical to the November 6, 2015 contract, executed by Joe Cafiero (for Control) on January 8, 2016. The dates of both contracts are typed in at the first paragraph.
Control argues that it cannot be contractually obligated to indemnify Nicotra because the proposal did not contain an indemnification clause or insurance procurement clause, and the post-dated contract was not retroactive, rendering it therefore unenforceable for the subject loss. Nicotra maintains that the November 6, 2015 contract is plain in its intention that Control must defend and indemnify Nicotra, since the plaintiff's claims arise from Control's work and, moreover, that the parties' performance from receipt of the proposal and going forward is evidence of their intention to be bound by the contract, notwithstanding that its execution date was several days after plaintiff's accident.
This Court finds that there is a question of fact as to whether Nicotra is entitled to contractual indemnification from Control. "Interpretation of an unambiguous contract provision is a function for the court matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument" ( Teitelbaum Holdings v. Gold, 48 NY2d 51, 56 [1979] ). Nicotra provided Control with a contract, executed by Nicotra prior to or at the time Control began work on the project. At no time did Control object to any of the terms in the contract. After Plaintiff's accident, Control executed a contract identical to the contract Nicotra had previously provided. "In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look ... to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds. While it is the responsibility of the court to interpret written instruments, where a finding of whether an intent to contract is dependent as well on other evidence from which differing inferences may be drawn, a question of fact arises." ( 1912 Newbridge Rd., LLC v. Liantonio , No. 1682/15, 2019 WL 2113170 [N.Y.A.D. 2nd Dept. 2019] ).
Accordingly, it is
ORDERED, that the motion of plaintiff, Judith Juan Garcia, for partial summary judgment on liability is denied; and it is further
ORDERED, that the motion of defendants The Port Authority of New York and New Jersey, the Corporate Commons of Staten Island, LLC, the Nicotra Corporate Commons, LLC and the Nicotra Group LLC, for summary judgment dismissing the plaintiff's causes of action predicated on Labor Law §§ 200 and 241(6) and for common-law and contractual indemnification as against third-party defendant Control Electrical Contracting Corp., is denied; and it is further
ORDERED, that the motion of third-party defendant Control Electrical Contracting Corp., for summary judgment dismissing the third-party complaint against it is denied; and it is further
ORDERED, that that branch of third-party defendant Control Electrical Contracting Corp.'s motion to amend and serve its third-party Answer is granted, and it is further
ORDERED, that the Third-Party Defendant's Answer attached to the motion papers is deemed served upon all parties.