Opinion
INDEX NO. 155695/2013
08-29-2017
CORNELIUS GILCHRIST, RACHEL GILCHRIST, Plaintiff, v. JUDLAU CONTRACTING, INC., METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, CITY OF NEW YORK, Defendant. JUDLAU CONTRACTING, INC., METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, CITY OFF NEW YORK, Third-Party Plaintiffs, v. BRISK WATERPROOFING COMPANY and WANG TECHNOLOGY, LLC, Third-Party Defendants, JUDLAU CONTRACTING, INC., METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, CITY OF NEW YORK, Second Third-Party Plaintiffs, v. LIBERTY CONSTRUCTION CORP., Second Third-Party Defendants
NYSCEF DOC. NO. 230 PRESENT: HON. KATHRYN E. FREED Justice MOTION DATE __________ MOTION SEQ. NO. 007, 008, 009
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 180, 181, 182, 183, 184, 191, 192, 200, 212, 213, 214 were read on this application to/for Summary Judgment Upon the foregoing documents, it is Ordered that the motion is decided as follows.
Motion sequence numbers 007, 008, and 009 are consolidated for disposition.
Plaintiff Cornelius Gilchrist brings claims based on Labor Law §§ 200 and 241 (6) and common-law negligence, seeking recovery for injuries that he allegedly sustained when he tripped over an extension cord on the sidewalk in front of an historic building under renovation. Plaintiff's wife, Rachel Gilchrist, brings a claim for loss of consortium.
The City of New York (the City), Metropolitan Transportation Authority (MTA), and New York City Transit Authority (NYCTA), defendants/third-party plaintiffs/second third-party plaintiffs, own the site. Judlau Contracting, Inc. (Judlau), defendant/third-party plaintiff/second third-party plaintiff, was the general contractor. Brisk Waterproofing Company (Brisk), third-party defendant/second third-party plaintiff, was a subcontractor and plaintiff's supervisor. Wang Technology, Inc. (Wang), defendant/third-party defendant, was a subcontractor. Liberty Construction Corp. (Liberty), second third-party defendant, was, according to the owners and contractors, plaintiff's employer. Liberty denies this.
The City, MTA, NYCTA, Judlau, and Brisk have the same attorney. By stipulation dated November 29, 2013, the third-party action against Brisk was discontinued without prejudice. Plaintiff does not assert any claims against Brisk and Liberty.
Plaintiff does not oppose the dismissal of the Labor Law § 200 and common-law negligence claims as to MTA and NYCTA. Therefore, plaintiff's Labor Law § 200 and common-negligence claims against these defendants are dismissed. Plaintiff has discontinued all claims against Wang.
Wang moves for summary judgment dismissing all claims and cross claims against it (motion sequence number 007). MTA, NYCTA, and Brisk move for summary judgment 1) dismissing plaintiff's common-law negligence and Labor Law § 200 claims; 2) dismissing Wang's and Liberty's claims against them; 3) granting MTA and NYCTA summary judgment on their claims for contractual indemnification against Wang; and 4) granting MTA and Brisk summary judgment on their claims for contractual indemnification against Liberty (motion sequence number 008). Liberty moves to dismiss all claims and cross claims against it and Wang cross-moves for summary judgment on its common-law indemnification cross claim against Judlau, MTA, and Brisk (motion sequence number 009).
Wang cross-claims for contribution and indemnity against Brisk and Liberty. The City, MTA, NYCTA, and Judlau claim common-law and contractual indemnification, contribution, and breach of contract to procure insurance against Wang. The City, MTA, NYCTA, Judlau, and Brisk claim common-law and contractual indemnity, contribution, and breach of contract to procure insurance against Liberty. Liberty cross-claims for common-law and contractual indemnification and contribution against Wang. Liberty claims contractual and common-law indemnification, breach of contract, and contribution against the City, MTA, NYCTA, Judlau, and Brisk.
I. Background and Deposition Testimony
During his deposition, plaintiff testified that his duties included helping the masons, and building, raising, and lowering scaffolds. Every morning, he reported to the Brisk foreman, who told him what to do. The Brisk foreman was his only supervisor and director. On November 29, 2012, plaintiff and another employee took down a scaffold that was on the outside of the building. On his way to return a tool borrowed from another worker, plaintiff's shoe got caught on an extension cord and he fell. The accident happened under the sidewalk bridge in front of the building.
Plaintiff testified that he had moved the cord out of the way in order to tie up the dismantled scaffold so that it could be pulled up to the sidewalk bridge. The cord was coming down from the left side of the bridge over the top of the bridge, down to the ground and under a door to the inside the building. Plaintiff knew of no prior complaints about the cord and he never tripped on it before. He never moved the cord before the date of the accident.
Wang had a subcontract with Judlau to install vibration and noise monitors, liquid level sensors, and temperature gauges at the project site. The subcontract explicitly excluded "protection of wiring and equipment" as part of Wang's duties (Judlau-Wang contract, Amendment 'B' at 9 of 12). Vincent Chin testified for Wang. He said that it was Judlau's duty to provide Wang with a place to plug in its equipment. Judlau told Wang what power source to use. When the power source for an outdoor noise monitor stopped working, Judlau told Wang it could get electrical power from inside the building.
Chin testified that the outdoor noise meter was on a scaffold. He ran an extension cord from the noise meter, along the scaffold and a wooden barricade to under the door to inside the building. Every two feet, the cord was secured with ties to the scaffold and to the wooden barricade. The barricade was between the sidewalk bridge and the entrance of the building. Chin came to the site once a week to take readings. The last time he saw the extension cord before the accident, it was secured to the scaffold and the barricade. Chin testified that he did not know anything about the removal of the cord from the barricade. He was not there when it was removed or when the accident happened.
James Bigger was a Brisk foreman who supervised and directed plaintiff. He testified that Brisk was hired to do masonry work on the building under renovation. Two weeks before the accident, Bigger notified Judlau that a wooden barricade would have to come down so that Brisk could erect a scaffold. Judlau's employees removed the wooden barricade the day before plaintiff's accident. Bigger did not see the extension cord before the barricade was taken down because the cord was under sheets of plywood attached to the barricade. When Judlau removed the barricade, Bigger saw the cord on the ground. On the day before the accident, the extension cord was released from its ties and was hanging down from the scaffold and going under the door.
On the day of the accident, plaintiff and another worker first erected a scaffold and then took it down later the same day. Bigger saw the cord on the ground on the day of the accident. Bigger testified that he warned plaintiff about the cord.
Bigger also testified that there was no common ownership or management between Brisk and Liberty, and that plaintiff was employed by Brisk through Liberty. He said that Brisk asks Liberty to provide union workers, who then are under Brisk's supervision and control. Brisk pays Liberty the workers' salaries and benefits, and Liberty issues the checks. Liberty was not involved at the job site.
Matt Iacobazzo testified that he was the ombudsman for Liberty. He said that Liberty is signatory to different unions, and that because Brisk did not have a signatory relationship with a union, it was Liberty's client. Brisk, requested that Liberty obtain union workers for the job. Liberty acts strictly as paymaster doing clerical tasks and does not decide which employees to send to a job. The union hall decides which employees to send on a job. He said that Liberty does not supervise or visit the site.
Robert Sammons was Judlau's property manager. He testified that NYCTA/MTA hired Judlau to restore an old building. Judlau made contracts with about 30 subcontractors. Brisk and Wang were two of them. He never heard of Liberty until the day of his deposition.
II. Standard for Summary Judgment Motions
The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence that shows the absence of any material issues of fact in the case (Santiago v Filstein, 35 AD3d 184, 185-186 [1 Dept 2006]). If the moving party meets this burden, the party opposing the motion must demonstrate the existence of a triable issue of fact (Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1 Dept 2006]). If there is any doubt whether the case contains a triable fact, the court must deny the motion for summary judgment (Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 [1 Dept 2002]). The court must view the evidence in the light most favorable to the party opposing the summary judgment motion (Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]). If the moving party fails to make the prima facie showing, the motion will be denied, regardless of the merit of the opposing arguments (Johnson v CAC Bus. Ventures, Inc., 52 AD3d 327, 328 [1 Dept 2008]).
III. Wang's Motion to Dismiss All Claims Against It (Motion Sequence # 007)
Although plaintiff does not make any direct claims against Wang, its liability for the accident must be discussed, since Judlau, MTA, NYCTA, the City, and Liberty assert claims for common-law indemnification, contractual indemnification, and contribution against Wang.
A. Wang's Liability Under Labor Law § 200 and Common-Law Negligence
"Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). An accident may be the result of the contractor's means and methods in doing its work or the result of a dangerous condition at the work site (id.; Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 143-144 [1 Dept 2012]). While plaintiff bases his theory of liability on the allegedly defective condition of the premises rather than on the manner in which the work was performed, the site owners and contractors address both theories.
A party is liable under section 200 or common-law negligence principles if it supervised and controlled the plaintiff's work or created the dangerous condition or had notice of it (Torkel v NYU Hosps. Ctr., 63 AD3d 587, 591 [1 Dept 2009]).
Wang establishes that it was not negligent. Wang did not create the dangerous condition, have notice of it, or control or supervise plaintiff's work. The evidence shows that Wang left the extension cord tied down and in a condition that did not contribute to the accident. Wang was not at the work site the day before the accident when the cord was moved, or on the day of the accident. The Brisk foreman testified that, the day before the accident, the extension cord was released from its ties and was hanging down. Plaintiff testified that, twenty minutes before the accident, he moved the cord and that no one else touched the cord, as far as he knows, between the time that he moved it and the time that he fell. Plaintiff said that he had to move the cord in order to do his work. Wang also establishes that it had no duty to supervise plaintiff. Plaintiff testified that he received direction solely from Brisk.
B. Wang's Liability Under Labor Law § 241 (6)
Under Labor Law § 241 (6), contractors, owners, and their agents must provide adequate protection and safety to workers. The statute imposes a nondelegable duty upon owners and general contractors to comply with Industrial Code provisions mandating compliance with concrete specifications (Morris v Pavarini Constr., 9 NY3d 47, 50 [2007]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502 [1993]). A subcontractor, not being a contractor or an owner, is not liable under this section, unless it is the statutory agent of an owner or contractor (Morales v Spring Scaffolding, Inc., 24 AD3d 42, 46 [1 Dept 2005]). A subcontractor who is given authority to supervise and control the work becomes a statutory agent of the general contractor or owner (id.). The contractors and owners argue that Wang was an agent, but, at the time of the accident, Wang had no control over the placement of the extension cord and never had control over plaintiff's work.
C. Wang's Obligation to Provide Common-Law Indemnification and Contribution
To make a case that Wang has a duty to provide common-law indemnity, the claimants must point to evidence that Wang's negligence caused or contributed to the accident, or that Wang had authority to control the work giving rise to the accident, and that the claimants, without actual fault on their part, are only vicariously liable for Wang's fault (McCarthy v Turner Constr., Inc., 17 NY3d 369, 375-376 [2011]; Aiello v Burns Intl. Sec. Servs. Corp., 110 AD3d 234, 247 [1 Dept 2013]). With respect to contribution, the party from whom contribution is sought must have breached a duty to the injured party or to the party seeking contribution, or have negligently caused the injury (Burgos v 213 W . 23rd St. Group LLC, 48 AD3d 283, 284 [1 Dept 2008]; Jehle v Adams Hotel Assoc., 264 AD2d 354, 355 [1 Dept 1999]). Since there is no evidence that Wang was negligent or that it breached a duty, it is not liable for common-law indemnification or contribution. The evidence fails to raise a triable issue of fact that Wang supervised or controlled plaintiff's work at the job site, caused or created the dangerous condition, had actual or constructive notice of the condition, or acted as an agent under Labor Law § 241 (6).
D. Wang's Obligation to Provide Contractual Indemnification
The contract between Judlau and Wang contains the following provision:
"12. INSURANCE AND INDEMNIFICATION: The Subcontractor, shall to the fullest extent permitted by law, hold the Contractor and the Owner, their agents, employees and representatives harmless from any and all liability ... from any claims or causes of action of whatever nature arising from the Subcontractor's work . . . by reason of any claim or dispute of any person or entity for damages from any cause directly or indirectly relating to any action or failure to act by the Subcontractor . . . The Subcontractor acknowledges that specific consideration has been received by it for this indemnification. As part of the Subcontractor's overall obligation, the Subcontractor shall obtain . . . full insurance coverage as specified in Amendment "C" . . . [and the policy shall name Judlau as a named insured].(Judlau-Wang Contract, at 4 of 12).
Subcontractor agrees to indemnify and hold harmless Contractor . . . against any and all claims . . . any and all costs, expenses and attorney's fees, by reason of illness, injury, loss . . . arising out of, in connection with, or in any manner related to the use of Subcontractor's equipment, tools, supplies or materials by any other subcontractor"
The proposed indemnitees correctly argue that Wang is contractually obligated to indemnify them regardless of its fault. "Contractual indemnity agreements in construction cases usually fall into two broad categories i.e., those in which indemnitor agrees to provide indemnity irrespective of indemnitor's fault, and those in which the indemnitor's fault is a necessary predicate for the obligation to indemnify" (Robinson v City of N.Y., 8 Misc 3d 1012[A], 2005 NY Slip Op 51067[U], *6 [Sup Ct, Bronx County], affd 22 AD3d 293 [1 Dept 2005]). Under the Judlau-Wang contract, Wang's obligation to indemnify is not conditioned on its fault (see Keena v Gucci Shops, Inc., 300 AD2d 82, 82 [1 Dept 2002]; Correia v Professional Data Mgt., 259 AD2d 60, 65 [1 Dept 1999]). Wang must thus act as indemnitor even if it did not act with negligence, provided that the accident arose out of or was connected to its work.
As discussed in Robinson (8 Misc 3d 1012[A], 2005 NY Slip Op 51067[U], *6), courts generally hold that agreements, like the Judlau-Wang contract, providing, that a party must indemnify another for claims "arising out of," or "in connection with," the indemnitor's work do not require proof of fault on the part of the indemnitor. Such language, however, does mean that there must be some connection between the indemnitor and the claims or injuries for which indemnification is sought. The parties seeking contractual indemnification from Wang argue that the accident is sufficiently connected to Wang's work for the indemnification provision to be triggered. They point out that Wang placed the extension cord in the general area where plaintiff tripped over it, and that the cord belonged to Wang.
An indemnification clause must be carefully "parsed" and its meaning construed in light of the facts of the particular case (Robinson, 8 Misc 3d 1012[A], 2005.NY Slip Op 51067[U], *6). Cases in which subcontractors agreed to provide indemnification using language similar to that in the Judlau-Wang agreement provide a guide as to the circumstances under which the subcontractor, although not negligent, will be obligated to indemnify. In some instances, the injured person is in the subcontractor's employ. The subcontractor was obligated to indemnify, where the agreement covered claims "'arising out of or in consequence'" of the subcontractor's work, where the plaintiff was injured working for the subcontractor (Hurley v Best Buy Stores, L.P., 57 AD3d 239, 239 [1 Dept 2008]). Where the subcontractor promised to indemnify for injuries "'arising out of, in connection with or as a consequence of the performance of the Work hereunder,'" and the injured person was the subcontractor's employee who was injured en route to his employer's shanty on the site, the court ruled that the injury arose out of the subcontractor's work, although the employee was not actually engaged in work at the time (Engel v 33 West End Ave., 2011 WL 11070172, *22 [Sup Ct, NY County 2011]). In this case, the injured plaintiff was not Wang's employee and was not doing Wang's work.
In other situations, liability for contractual indemnification exists although the injured person is not the indemnitor's employee. It is not "necessary that plaintiff himself be actively engaged in the type of work covered by the indemnity contract in order for such injury to fall within this broadly worded indemnification provision" (Balbuena v New York Stock Exch., Inc., 49 AD3d 374, 376 [1 Dept 2008]). In Balbuena, the subcontractor promised to indemnify against any claim that "arose out of, was incidental to, or resulted from, the work of erecting or dismantling the scaffold" (id.). The injured employee, who did not work for the subcontractor, fell from a scaffold erected by the subcontractor and the latter had to provide indemnification.
Other cases in which a subcontractor had to indemnify against claims by one who was not its employee include Urbina v 26 Ct. St. Assoc., LLC (46 AD3d 268 [1 Dept 2007] [see cases discussed there]). Indemnification applied to claims "arising out of the work performed under this [sub]contract" (id. at 270). When the subcontractor's employees left for the day after erecting a scaffold solely for their use, and the scaffold collapsed causing the accident, the subcontractor had to provide indemnification, as the injury arose out of its work, although the plaintiff was not performing that work (id. at 271). A subcontractor had to provide indemnification "for claims arising out of its work, where the subcontractor removed the window out of which the employee fell, although the employee did not work for the subcontractor (Wilk v Columbia Univ., 150 AD3d 502, 503 [1 Dept 2017]; Keena, 300 AD2d at 82 [subcontractor had to indemnify where it supplied the plank which gave way causing plaintiff to fall]; Allen v City of New York, 2012 NY Slip Op 32907[U], *2 [Sup Ct, NY County 2012] [subcontractor had to indemnify where it installed the joint over which plaintiff fell and there was no intervening change to the accident location]; Davis v Breadstreet Holdings Corp., 2012 NY Slip Op 30870[U] [Sup Ct, NY County 2012] [subcontractor had to indemnify, where plaintiff was injured stepping on sheetrock which the subcontractor left "around the worksite"]).
On the other hand, in Brown v Two Exch. Plaza Partners (146 AD2d 129, 136 [1 Dept 1989], affd 76 NY2d 172 [1990]), the subcontractor who built the scaffolding from which plaintiff fell did not have a duty to indemnify since, once the scaffold was built, the subcontractor had no control over scaffold use and the work of building the scaffold was not causally related to the accident. Here, although Wang owned the extension cord, it was after other parties moved the cord that plaintiff tripped on it.
"As a general rule, the 'arising out of language will not be satisfied where the indemnitor's work bears little relation to the loss and it had no employees working at the site at the time of the loss" (3 Bruner & O'Connor Construction Law § 10:58.10 [Westlaw ed]). Indemnification will be triggered upon a showing that a particular act or omission was causally related to the accident (Urbina, 46 AD3d at 271). In Pepe v Center for Jewish History, Inc. (59 AD3d 277 [1 Dept 2009]), the subcontractor was not liable for indemnification when an employee of the general contractor was injured when he hopped over a parapet wall which the subcontractor was in the process of building. Regarding whether the injuries "arose out of or "in connection with" the subcontractor's work, the court stated that the "connection between plaintiff's accident and the mere existence of the partially constructed wall . . . [was] too tenuous to trigger the indemnification clause" (id. at 278).
Although the indemnification clause in the Judlau-Wang contract is broad, it does not apply here since Wang had no causal connection to the accident (see Howell v Bethune West Assocs., LLC, 33 Misc 3d 1215[A], 2011 NY Slip Op 51939[U] [Sup Ct, NY County 2011]). Thus, the owners and contractors are not entitled to contractual indemnification from Wang.
E. Wang's Failure to Procure Insurance
The Judlau-Wang contract requires Wang to purchase insurance naming Judlau, the City, MTA, NYCTA and others as additional insureds. Wang must purchase workers' compensation insurance covering its employees directly or indirectly engaged in the performance of the subcontract, as well as commercial general liability (CGL) insurance. The CGL policy must provide premises/operations coverage "for all work to be performed by the Subcontractor & their Subcontractors" (Judlau-Wang contract, Amendment "C"). The contract identifies Wang as the subcontractor.
A contract must be interpreted according to its plain meaning (Steinberg v Schnapp, 73 AD3d 171, 175 [1 Dept 2010]). The Judlau-Wang contract means that Wang's insurance should indemnify the additional insureds, in the event that a claim against those parties results from work performed by Wang's employees or the employees of Wang's subcontractors. The insurance, if it had been purchased, would not apply to damages resulting from plaintiff's accident, as plaintiff was not doing Wang's work or the work of a Wang subcontractor and Wang did not create the dangerous condition. The parties who were to have been named as additional insureds in Wang's policy would not have been covered by Wang's policy.
Although the parties who were to be additional insureds cannot show that they were damaged by what appears to be Wang's breach, they may be entitled to nominal damages for breach of contract (see Kronos, Inc. v AVX Corp., 81 NY2d 90, 95 [1993]; Ledy v Wilson, 40 AD3d 239, 239-240 [1 Dept 2007]). Since Wang does not demonstrate that it procured the insurance, the claim that it failed to procure insurance will not be dismissed (see Simmons v Berkshire Equity, LLC, 149 AD3d 1119, 1121 [2d Dept 2017]).
Wang's motion to dismiss all claims against it is granted, except for the claim that it breached the Judlau-Wang contract by not procuring insurance. IV. Motion by MTA, NYCTA, and Brisk (Motion Sequence # 008)
MTA, NYCTA, and Brisk move to 1) dismiss plaintiff's common-law negligence and Labor Law § 200 claims against MTA and NYCTA; 2) dismiss Wang's and Liberty's claims against them; 3) grant MTA and NYCTA summary judgment for contractual indemnification against Wang; and 4) grant MTA and Brisk summary judgment for contractual indemnification against Liberty.
The first part of the motion is granted. The third part is denied. Left for resolution are the second and fourth parts of the motion.
A. The Second Branch of MTA's, NYCTA's, and Brisk's Motion
Wang asserts claims against MTA, NYCTA, and Brisk for common-law indemnification and contribution. Given that Wang bears no liability toward plaintiff, it is not entitled to recover anything from those who may bear some liability. Thus, Wang's claims against MTA, NYCTA, and Brisk are dismissed.
Liberty asserts claims against MTA, NYCTA, and Brisk for contractual and common-law indemnification, breach of contract, and contribution. Since Liberty does not allege the existence of a contract in which it was promised indemnification, its claims for contractual indemnification and breach of contract are dismissed.
The deposition testimony revealed that Liberty was not at the site and had no control over the work. Since contribution takes place among tort-feasors (see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 568 [1987]), and the evidence shows that Liberty was not a tort-feasor, Liberty's contribution claim against MTA, NYCTA, and Brisk is dismissed.
MTA, NYCTA, and Brisk contend that, because they were not negligent, they cannot be liable to Liberty for common-law indemnification. (see Marlins v Little 40 Worth Assocs., Inc., 72 AD3d 483, 484 [1 Dept 2010]). MTA and NYCTA's argument that they were not negligent is based on an affidavit by Priscilla Yen, their senior claims specialist. Yen states that neither transit entity supervised, controlled, or directed the means, manner or methods by which plaintiff performed his work, and that they had no knowledge of the extension cord or its location. Yen does not claim any knowledge of what went on at the construction site. She does not state how she knows that the transit entities did not direct the work. For that reason, her affidavit does not establish the absence of negligence on the part of MTA and NYCTA. As for Brisk, evidence shows that it had supervision and control over plaintiff, and that it may have had a part in placing the cord in a dangerous manner. Liberty's claim for common-law indemnification is not dismissed, because of the possibility that the transit entities and Brisk may have been negligent.
B. The Fourth Branch of the Motion By MTA, NYCTA, and Brisk
The fourth branch of the motion, in which MTA and Brisk seek summary judgment for contractual indemnification against Liberty, calls for an examination of the entire contract between Brisk and Liberty.
The first part of the Brisk-Liberty contract is two pages long. The opening paragraph of the contract provides that Brisk is the contractor and that Liberty is the subcontractor that will "perform certain work described in Section B of this Subcontract" (Brisk-Liberty Contract, at 1). The second paragraph recites that the contractor entered into a subcontract with Judlau and that Judlau entered into a "Prime Contract" with "NYCMTA," called "Owner" (id.). "Contractor" refers to Brisk and Owner refers to "either the Owner or the prime contractor referred to above" (id.). "Subcontractor referred to above is understood to be a sub-subcontractor on this project. All references to 'Contractor' and 'Subcontractor' in this subcontract agreement, [sic] and shall be construed to be consistent with this relationship and all of the contracts and documents relating to this project" (id.).
Liberty argues that these provisions create an ambiguity as to the identity of the subcontractor and sub-subcontractor. Brisk argues that the contract merely acknowledges that Liberty is a sub-subcontractor on the project and does not change the fact that Liberty is clearly identified as the subcontractor for the purposes of the Brisk-Liberty agreement. This Court agrees that the subcontractor and the sub-subcontractor are both Liberty. Where the Brisk-Liberty contract refers to the Judlau-Brisk contract, Judlau is the "contractor", Brisk is the "subcontractor", and Liberty is the "sub-subcontractor." Where the Brisk-Liberty contract refers to itself, Liberty is called the "subcontractor" and Brisk the "contractor."
"Section B - Scope of Work" provides that "Subcontractor agrees to furnish all labor, material, skill and equipment to perform the Work more particularly described as: Provide mason labor as requested by Contractor . . . Subcontractor is required to maintain its responsibilities as paymaster . . ." (Brisk-Liberty contract, at 1). "Section C - Scheduling of Work" provides that "Subcontractor shall begin work on or as otherwise directed in a written notice to proceed from Contractor. The Work must be completed as directed by Contractor" (id. at 2). The subcontractor must maintain insurance and the parties agree to the "General Subcontract Conditions attached hereto" (id.). At the bottom of page two are the names and signatures of Brisk and Liberty.
The next section, entitled "General Subcontract Conditions," consists of eight pages and includes the indemnity and insurance provisions addressed below. Article 2.1 provides that the work described in section B shall be performed in accordance with all drawings and specifications. Subcontractor must pay for all labor, materials and equipment used in connection with the performance of this subcontract (¶ 2.2). Subcontractor shall at all times have a designated superintendent or foreman on the job site (¶ 4.3). Subcontractor shall attend all project meetings (¶ 4.4). Subcontractor shall not use any of the contractor's equipment without express permission (¶ 7.2). Subcontractor shall be solely responsible for the safety of the workers, sub-subcontractors and suppliers (¶ 8.1). Subcontractor shall not bring hazardous substances to the project site (¶ 8.3). The last page is headed with Liberty's name and, underneath that, reads "Interior Demolition and Recycling," "Mason Tenders Hourly Rate," and "Paymaster." Listed are rates for wages, benefits, FICA, disability insurance, and other items comprising pay.
Brisk argues that the Brisk-Liberty contract makes Liberty responsible for worker safety and that Liberty breached this duty to plaintiff. Liability under section 200 or common-law negligence requires actual supervision or control of the work (Rizzo v Hellman Elec. Corp, 281 AD2d 258, 259 [1 Dept 2001]), which does not exist in Liberty's case. Liability under section 241 (6) does not require actual supervision or control; it requires the authority or right to exercise supervision or control (id.). To have that authority over plaintiff, Liberty would have had to become the owners' or Judlau's statutory agent and there is no evidence or even allegation of that (id.). Nor does the contract give Liberty that authority or right. The provision about worker safety in the Brisk-Liberty contract confers "general supervisory duties" to monitor safety at the work site (see DaSilva v Haks Engrs., Architects, & Land Surveyors, P.C., 125 AD3d 480, 481-482 [1 Dept 2015]). Such duties are not enough to form a basis for liability (id.; Suconota v Knickerbocker Properties, LLC, 116 AD3d 508, 508-509 [1 Dept 2014]). The evidence fails to raise a triable issue of fact that Liberty supervised or controlled plaintiff's work at the job site, caused or created the dangerous condition, had actual or constructive notice of the condition, or acted as an agent under Labor Law § 241 (6).
Brisk and Liberty disagree over which one was plaintiff's employer, since the answer to this question affects Liberty's duty to indemnify. Page 5 of the Brisk-Liberty contract provides:
"9.1 INDEMNIFICATION AND DEFENSE OBLIGATION
To the fullest extent permitted by law, the Subcontractor shall defend, indemnify and hold harmless the Owner, Contractor . . . against any liability . . . and attorney's fees arising out of or resulting from the performance of the Work by Subcontractor, sub-subcontractors, or anyone for whose acts they may be liable, regardless of any negligence on the part of the party seeking indemnity hereunder, except if caused by the sole negligence of the part seeking indemnity."
The putative indemnitees and Liberty disagree as to whether plaintiff's claims can be characterized as arising out of, or resulting from, the performance of the subcontractor's work. If Liberty's work was confined to providing labor from the union hall and acting as paymaster, plaintiff's injury could not be regarded as arising out of Liberty's work. In that case, the causal connection between the work and the injury would be lacking, given that Liberty did not supervise the work and was not negligent (see Urbina, 46 AD3d at 271; Kosiv v ATC Group Servs., Inc., 53 Misc 3d 1201[A], *5, 2016 NY Slip Op 51307[U] [Sup Ct, New York County 2016]). On the other hand, if Liberty's work was more like what the contract describes, there might be a causal connection between the injury and the work that plaintiff was doing when he was injured.
It seems that the first two pages and the last page of the Brisk-Liberty contract are tailored to the specific parties and job, while the other part appears to be a general agreement typically used between contractors and subcontractors. The first part states that Brisk will direct the work and limits Liberty's duties to providing mason labor and acting as paymaster, in contrast with the other part, entitled the General Subcontract Conditions, which places many more obligations upon Liberty. Sections refer to the subcontractor's use of drawings, its having a foreman on site, and other matters indicating a direct involvement with the work. However, the parties, including Brisk's foreman, testified that Liberty was not at the job site, that it did not supervise the work, and that it had no involvement in the work. Thus, the parties' performance of the contract was not consistent with the terms of the agreement.
The court must look to the contract as a guide to what the parties intended (see Blank Rome. LLP v Parrish, 92 AD3d 444, 445 [1 Dept 2012]). In this case, the contract is not clear about Liberty's duties. The parties' conduct subsequent to making the contract may indicate that they changed their intention or that their original intention is not reflected in the agreement. Parties may modify an agreement by their conduct (Barsotti's, Inc. v Consolidated Edison Co. of N.Y., 254 AD2d 211, 212 [1 Dept 1998]), or their conduct may demonstrate that their intention at the time of contracting was not fully or correctly expressed in their contract (Gulf Ins. Co. v Transatlantic Reins. Co., 69 AD3d 71, 85-86 [1 Dept 2009]). Whether the parties employed the second part of the Brisk-Liberty contract mainly for the sake of convenience and did not intend for all of its parts to be enforceable is a question of fact.
Liberty contends that the indemnification clause violates General Obligations Law § 5-322.1, by purporting to indemnify the owner and contractor for its own negligence. The rule has long been that such provisions are enforceable as to partial indemnification, provided that they contain the limiting language, "to the fullest extent permitted by law." The indemnitee is indemnified to the extent that it was not negligent and its liability is vicarious (Dutton v Pankow Bldrs., 296 AD2d 321, 321-322 [1 Dept 2002]; see also Johnson v Chelsea Grand E., LLC, 124 AD3d 542, 543 [1 Dept 2015]). The provision permits partial indemnification of MTA and Brisk for injuries partially caused by their negligence.
The fourth branch of motion sequence # 008 seeking summary judgment against Liberty on the contractual indemnification claim is thus denied.
V. Liberty's Motion to Dismiss All Claims Against It (Motion Sequence # 009)
Judlau, MTA, NYCTA, Brisk, and the City assert claims for common-law and contractual indemnification, contribution, and breach of an agreement to procure insurance against Liberty. Since Liberty was not negligent, it is not liable for common-law indemnification or contribution. Whether Liberty must provide contractual indemnification is an issue of fact.
As for the agreement to procure insurance, the Brisk-Liberty contract provides that Liberty shall procure CGL insurance naming Brisk, Judlau, NYCTA, MTA, and the City as additional insureds. Liberty shows that it purchased insurance covering Brisk, but not the others.
Wang may not counterclaim against Liberty for indemnification and contribution. The parties did not enter into a contract together and, as neither Wang nor Liberty was negligent, they cannot assert negligence-based claims against each other.
All of Wang's claims against Liberty are dismissed. The claims by Judlau, MTA, NYCTA, Brisk, and the City against Liberty for common law-indemnification and contribution are dismissed, although their claims for contractual indemnification are not. Their claim for breach of contract is dismissed only insofar as asserted by Brisk.
VI. Wang's Cross Motion
Wang cross-moves for summary judgment on its common-law indemnification claims against Judlau, MTA, and Brisk. Unlike the other two, Judlau did not make a previous motion. A cross motion is a motion by a party against the party who made the original motion (Kershaw v Hospital for Special Surgery, 114 AD3d 75, 87 [1 Dept 2013]). "The rule is that a cross motion is an improper vehicle for seeking relief from a nonmoving party" (id. at 88). The cross motion is improper, since it seeks relief from Judlau, a nonmoving party.
The cross motion is also untimely. Pursuant to the preliminary conference order, the time to file motions for summary judgment ended October 27, 2016, 120 days after the note of issue was filed. Wang's cross motion was filed on November 1, 2016.
Wang offers no good cause for the untimeliness. A cross motion for summary judgment made after the expiration of the statutory 120-day period may be considered, even in the absence of good cause, only where a timely motion for summary judgment was made seeking nearly identical relief to that sought by the cross motion (Filannino v Triborough Bridge and Tunnel Auth., 34 AD3d 280, 282 [1 Dept 2006]). Wang concedes that its cross motion is late, but argues that it should be considered because it seeks relief on the same issues raised in motion sequence # 008, which is timely. Wang cross-moves for summary judgment on its common-law indemnification claims against Judlau, MTA, and Brisk. MTA, NYCTA, and Brisk previously made motion # 008, seeking to dismiss Wang's claims for common-law indemnification and contribution against them.
Given that the cross motion was only a few days late, that the cross motion and motion sequence # 008 address similar issues, and that the evidence supports the conclusion that Wang was not negligent, this Court will consider and deny the cross motion. Wang is not entitled to summary judgment on its common-law indemnification claims because it bears no liability, vicarious or otherwise, for the accident.
In light of the foregoing, it is hereby:
ORDERED that the motion by defendant/third-party defendant Wang Technology, Inc. for summary judgment (motion sequence 007) is denied insofar as it seeks dismissal of the claim of breach of contract asserted against it in the third-party complaint, and the motion is otherwise granted, and the remainder of the claims against Wang are dismissed; and it is further
ORDERED that the motion by defendants/third-party plaintiffs/second-third party plaintiffs Metropolitan Transportation Authority and New York City Transit Authority and third-party defendant/second third-party plaintiff Brisk Waterproofing Company for summary judgment (motion sequence 008) is denied insofar as seeks summary judgment based on contractual indemnification as against Wang Technology, Inc. and Liberty Construction Corp., is granted insofar as it dismisses the claims of Wang Technology, Inc. and Liberty Construction Corp. as against movants, and is granted insofar as it dismisses plaintiff's common-law negligence and Labor Law § 200 claims as against movants; and it is further
ORDERED that motion for summary judgment by Liberty Construction Corp. (motion sequence 009) seeking dismissal of the contractual indemnification claim asserted against it in the second third-party complaint is denied; and it is further
ORDERED that the motion for summary judgment by Liberty Construction Corp. (motion sequence 009) seeking dismissal of the breach of contract claims alleged against it in the second third-party complaint is denied, except as against Brisk Waterproofing Company, against which it is granted, and the claim for breach of contract asserted by Brisk Waterproofing Company as against Liberty Construction Corp. in the second third-party complaint is dismissed; and it is further
ORDERED that the motion for summary judgment by Liberty Construction Corp. (motion sequence 009) is granted with respect to all claims for common-law indemnification and contribution and said claims are dismissed as against movant; and it is further
ORDERED that the cross motion by defendant/first third-party defendant Wang Technology, Inc. (motion sequence 009) is denied; and it is further
ORDERED that this constitutes the decision and order of this Court. 8/29/2017
DATE
/s/ _________
KATHRYN E. FREED, J.S.C.