Opinion
INDEX NO. 654169/2013
03-21-2019
GEORGIOS GLYKAS, KATERINA GLYKAS, Plaintiff, v. ROOSEVELT ISLAND OPERATING CORPORATION, PUTNAM HOLDING COMPANY, LLC,URBAN AMERICAN MANAGEMENT CORP, ROMA SCAFFOLDING, INC, Defendant.
NYSCEF DOC. NO. 268 MOTION DATE 08/09/2018, 08/09/2018, 08/09/2018 MOTION SEQ. NO. 006 007 008
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 006) 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 212, 242, 243, 245, 246, 247, 248, 250, 260, 261, 263 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER. The following e-filed documents, listed by NYSCEF document number (Motion 007) 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 213, 215, 216, 217, 218, 219, 220, 221, 222, 223, 236, 237, 238, 239, 244, 255, 258 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER. The following e-filed documents, listed by NYSCEF document number (Motion 008) 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 205, 206, 207, 208, 209, 210, 211, 214, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 240, 241, 249, 251, 252, 253, 254, 257, 262, 264, 265 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER. HON. PAUL A. GOETZ:
In this action for personal injuries asserting violations of the Labor Law, second third party defendant, USA Electrical Services Corp. (USA Electrical) moves, pursuant to CPLR 3212, for summary judgment dismissing the second cause of action for common-law indemnity, the third cause of action for contribution, and the fourth cause of action for failure to procure requisite insurance as against it in the second third-party complaint, and dismissing all cross claims as against it sounding in contractual indemnification, common-law indemnification, contribution, and breach of contract (motion sequence 006). Plaintiff Georgios Glykas moves, pursuant to CPLR 3212, for partial summary judgment on the issue of liability under Labor Law § 240 (1) against defendants Roosevelt Island Operating Corporation (Roosevelt), North Town Roosevelt, LLC (North Town), and Evco Mechanical Corporation (Evco) (motion sequence 007). Defendants North Town, Urban Greenfit SPV, LLC (UGreenfit), Roosevelt, Putnam Holding Company, LLC (Putnam) and Urban American Management Corp. (UAmerican) (collectively Owner Defendants) move, pursuant to CPLR 3212, for an order dismissing plaintiffs' Labor Law § 200 claim and granting them summary judgment on their common-law indemnification claim as against Evco, Roma Scaffolding, Inc. (Roma), and USA Electrical, or in the alternative, granting them summary judgment on their contractual indemnity claim as against Evco (motion sequence 008). The motions are consolidated for disposition.
BACKGROUND
Plaintiff Georgios Glykas (plaintiff) was allegedly injured on September 26, 2013 (the accident) while working at a construction jobsite (the jobsite) located at 540 Main Street, on Roosevelt Island in New York, New York (Affirmation of Stacia J. Ury dated December 26, 2017, Exh. P [Glykas Dep. Tr. at 130]). Plaintiff testified at his deposition that he was employed by USA Electrical as an assistant electrician (id. at 15-16, 111-112). It was plaintiff's job to install exterior piping from the ground to the roof of the building (id. at 16-17). USA Electrical gave him instructions for his work (id.). He never had any interactions with the Owner Defendants (id. at 111-112).
Plaintiff began working at the jobsite fifteen days before the accident (id. at 130). He climbed a 21-story scaffold (the scaffold) each day as required, and, from the first day he noticed that the scaffold was "fidgety" (id. at 135). Plaintiff testified that "[the scaffold] moved too much," and that he made many complaints to his bosses at USA Electrical about the scaffold moving before the accident (id. at 135, 137). While working on the scaffold, plaintiff used a harness provided by USA Electrical (id. at 133). He was not able to use the harness while descending the scaffold because the rings on the harness were too small (id. at 155-156). On the day of the accident, plaintiff was working on the 21st floor of the scaffold (id. at 152). He connected his harness to the scaffold as directed by USA Electrical (id. at 152). As he was descending the scaffold, he was also inspecting it to make sure no equipment was left on the scaffold (id. at 155). He had to disconnect his harness to descend the scaffold and could not stay "clipped on" to the scaffold as he descended each floor (id. at 155). Plaintiff testified that, as he descended the scaffold, it moved continuously (id. at 156). As he walked from the second floor to the first floor of the scaffold, the scaffold moved, causing him to fall (id. at 160). No one saw plaintiff fall (id. at 168). His co-worker, Michail Fragkoulis, was the first person to find him after he fell (id.).
Deposition Testimony of Joshua, Eisenberg (Executive Vice President of UAmerican)
Joshua Eisenberg (Eisenberg) testified that he is the executive vice president of UAmerican (Eisenberg tr at 10). UAmerican manages corporations in New Jersey and New York City (id. at 10). Owner Defendants are all owner entities of the building located at 540 Main Street (the building) (id. at 11-13). North Town employed UAmerican as the managing agent to manage the building (id. at 13). Putnam is the sole owner of 100% of the interest of North Town (id. at 12). At the time of the accident North Town owned the building, but it sold the building in 2014 (id. at 11). Specifically, North Town was the ground lessee; it did not own the land, only the building (id. at 12-13). Roosevelt is a state run public benefits corporation that is the ground lessor, as it owns the land under the building (id. at 13). UGreenfit owns the equipment inside the boiler room located on the 21st floor of the building (id. at 15-17). Putnam is 97% owner of UGreenfit (id.).
Eisenberg testified that in 2013, UGreenfit entered into a contract with Evco to remove old boilers and install new heating and co-generation equipment at the building (the project) (id. at 17). The project required running new gas and electrical lines from the ground up to the 21st floor of the exterior of the building (id. at 17-18). Evco entered into a subcontract with Roma to install the scaffold (id. at 31-32). Evco also entered into a subcontract with USA Electrical to install conduit on the exterior of the building (id. at 41). Steven Samouhos at Evco was responsible for day to day management of the design-build contract for the project. (id. at 45). Eisenberg testified that he only knew of the accident when this lawsuit commenced (id. at 50). He further testified that he only visited the jobsite to make sure the project was progressing so that he could report back to investors (id. at 61). He never had any conversations with anyone from USA Electrical or Roma (id. at 69-70). All the work on the project was coordinated by Evco (id. at 76).
Deposition Testimony of Stephen Samouhos (Evco account manager)
Stephen Samouhos (Samouhos) testified that he is an account manager for Evco (Samouhos tr at 11). UGreenfit hired Evco for the project (id. at 13). As part of the project, Evco entered into subcontracts with USA Electrical and Roma (id. at 17). Evco contracted with Roma to install scaffolding for the installation and running of electrical and gas piping lines up the side of the building (id. at 24, 27-28). Samouhos testified that he showed a Roma employee where the scaffold needed to be erected and to which height (id. at 24). He advised Roma of the purpose of the scaffold, i.e. the work being done that required scaffolding, but the scaffold design was left up to Roma (id. at 25). He did not discuss the manner in which Roma should install the scaffold (id. at 27). Evco employed a foreman for the mechanical work to be completed by Evco employees after installation of the scaffold (id. at 49). At the beginning of Evco's work, he asked this foreman if the scaffold had been built in a satisfactory manner, and the foreman replied "yes" (id. at 49-50).
Samouhos testified that Evco contracted with USA Electrical to install the conduit on the exterior of the building and to do power wiring up the penthouse and in the basement (id. at 85). He believed that all employees of Evco and USA Electrical working on the scaffold were required to wear harnesses (id. at 57-58). If he saw any worker not wearing a harness, he would have them stop work (id. at 57-58). He learned of the accident on the date it occurred (id. at 74). Vasilios Ladikos of USA Electrical told him during a phone call that plaintiff fell down the last step of the scaffold (id. at 75).
Deposition Testimony of Vasilios Ladikos (USA Electrical employee)
Vasilios Ladikos (Ladikos) testified that at the time of the accident he was an employee of USA Electrical (Ladikos tr at 9). His father is the owner of USA Electrical (id. at 12). Evco hired USA Electrical to do electrical services at the jobsite (id. at 15-16). Ladikos testified that he was in charge of the jobsite (id. at 15-16). Roma put up the scaffold for the project (id. at 16). All USA Electrical employees were provided with harnesses to wear while on the scaffold (id. at 18). Every day at the jobsite, he did an inspection on the scaffold to make sure it was sufficient for work to be performed (id. at 18-19). Ladikos initially testified that plaintiff never made any complaints about the scaffold, but then he later indicated that plaintiff may have said the scaffold "vibrated" (id. at 21). Ladikos testified that, "if you're at the top of the scaffold or anywhere particularly more than one story up, the second step down, I mean, you could feel it. It's metal bars so - I mean, it's not that it's moving, but it - did it vibrate, yes" (id. at 22). Ladikos did not see plaintiff fall (id. at 22).
Deposition Testimony of Astrit Skara (Vice President of Roma)
Astrit Skara (Skara) testified that he is the vice president of Roma (Skara tr at 16). Roma hired a professional engineer to design the scaffold and obtain a permit for it (id. at 26-29). After Roma put up the scaffold, Skara went to the jobsite with the general contractor from Evco for a walk-through for approval (id. at 20 -21, 29). Evco's general contractor approved the scaffold (id. at 21). No employees from Roma returned to the jobsite until it was time to remove the scaffold (id. at 21).
Deposition Testimony of Maqsooq Faruqui (Non-party)
Maqsooq Faruqui testified that he is a licensed engineer and that he designed the scaffold for Roma (Faruqui tr at 17, 21, 38). Based on photos he was shown at his deposition testimony, he testified that the scaffold that he designed, and the scaffold actually erected were different (id. at 31-32). The scaffold that was built did not come all the way to the ground, and there was a horizontal pipe causing obstruction (id. at 31-32). He testified that these two characteristics deviated from standard scaffolding installation (id. at 34). He did not perform inspections of the scaffold, although he has previously performed inspections for Roma when requested (id. at 44). He further testified that the scaffold he designed should not have moved, and that he designed the scaffold so that employees working on it would not need harnesses, as a harness would not be an appropriate safety device (id. at 56-58). He designed the scaffold with a 42-inch guardrail and handrails on the stairs (id. at 57). The scaffold was only intended to provide access to the roof from the outside; it was not intended to be used as a place for work to be done on the building (id. at 68, 80).
DISCUSSION
It is well-established that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Pullman v Silverman, 28 NY3d 1060, 1062 [2016]). The burden then shifts to the motion's opponent "to present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Sumitomo Mitsui Banking Corp. v Credit Suisse, 89 AD3d 561, 563 [1st Dep't 2011], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If there is any doubt as to the existence of a triable issue of fact, the motion for summary judgment must be denied (O'Brien v. Port Auth. of N.Y. and N.J., 29 NY3d 27, 37 [2017], citing Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).
Labor Law § 240 (1) Claim
Plaintiff moves for partial summary judgment in his favor as to liability on the Labor Law § 240 (1) claim against defendants Roosevelt, North Town, and Evco. Defendants oppose the motion. Labor Law § 240 (1), also known as the Scaffold Law (Ryan v Morse Diesel, 98 AD2d 615, 615 [1st Dept 1983]), provides, in relevant part:
"All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
It is well established that Labor Law § 240 (1) applies to "extraordinary elevation risks," and not the "usual and ordinary dangers of a construction site" (Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d 841, 843 [1994]). To establish liability under Labor Law § 240 (1), the plaintiff must establish the following two elements: (1) a violation of the statute, i.e., that the owner or general contractor failed to provide adequate safety devices; and (2) that the statutory violation was a proximate cause of the injuries (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 [2003]). Where a plaintiff is the sole proximate cause of an injury, liability does not attach under the statute (id. at 290).
Plaintiff argues that he is entitled to summary judgment in his favor as to liability on the Labor Law § 240 (1) claim against Roosevelt, North Town, and Evco because he has sufficiently established that these defendants failed to provide him with a secure, properly designed scaffold, despite the fact that he was working at a substantial height and he was required to work on the scaffold. In opposition to plaintiff's motion, defendants contend that plaintiff's motion is untimely and that there are triable questions of fact as to whether the accident was premeditated or if it did occur, in what manner it occurred.
At the outset, plaintiff's motion is timely. Pursuant to this court's order of October 30, 2014, summary judgment motions were to be made "no later than 90 days after filing the Note of Issue" (Owner Defendants' notice of motion, Martine reply affirmation, exhibit A). The Note of Issue was filed on September 27, 2017 (see id.). Plaintiff's motion was timely filed on December 21, 2017, which is within 90 days of filing of the Note of Issue.
Defendants argue that the deposition testimony of plaintiff's wife raises material questions of fact as to whether the accident even occurred or whether it was a staged event because she testified during her deposition that plaintiff had said to her seven to ten days prior to the accident that he was going to intentionally fall from the scaffold and claim an injury (see K. Glykas tr at 89-94). Defendants contend that this testimony creates a credibility issue which can only be determined by the trier of facts. Plaintiff argues that this testimony consists of privileged, confidential spousal communications, which are inadmissible pursuant to CPLR 4502.
CPLR 4502(b) states, "[a] husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage." (CPLR 4502 [b]). The privilege attaches to "statements made in confidence that are induced by the marital relation and prompted by the affection, confidence, and loyalty engendered by such a relationship" (Matter of Vanderbilt (Rosner-Hickey), 57 NY2d 66, 73 [1982] [internal quotation marks and citations omitted]). Communication between spouses "is presumed to have been conducted under the mantle of confidentiality" (People v Fediuk, 66 NY2d 881, 883 [1985] [internal quotation marks and citation omitted]). This presumption is not rebutted by the fact that the parties are not living together at the time of the communication, or that their marriage has deteriorated (id.). Plaintiff's wife's testimony regarding plaintiff's alleged statements about falling from the scaffold seven to ten days before the accident is protected by spousal privilege. From her testimony, it appears that the statements were made in confidence, and it does not seem to be an ordinary exchange. Counsel for defendants does not make a legal argument for an exception to the general rule of spousal privilege (see Owner Defendants' notice of motion, Orlando opposition affirmation at 11-15).
Defendants also argue that Ladikos's testimony raises material questions of fact as to how the accident occurred. In support of this argument, defendants point to the fact that Ladikos testified that plaintiff and Fragkoulis informed him at the scene of the accident that plaintiff fell down the scaffold after having tripped over his own lanyard that was improperly hooked to the front of his safety harness, which is markedly different from plaintiff's testimony that he fell because the scaffold on which he was working shook. Defendants contend that, in their respective depositions, plaintiff and Fragkoulis denied making these statements to Ladikos, which raises credibility issues that can only be determined by the trier of facts. Plaintiff argues that this is a question of immaterial fact that does not warrant denial of summary judgment, because both versions of the accident implicate a violation of Labor Law § 240 (1).
Conflicting versions of how a plaintiff's accident occurred does not warrant a denial of summary judgment if each version implicates a violation of Labor Law § 240 (1) (see Vergara v SS 133 W. 21, LLC, 21 AD3d 279, 280 [1st Dept 2005] [finding that "a lack of certainty as to exactly what preceded the plaintiff's fall to the floor below does not create a material issue of fact [] as to proximate cause" where defendants alleged the plaintiff caused his own accident by walking off the side of a scaffold]; (Romanczuk v Metro. Ins. & Annuity Co., 72 AD3d 592, 593 [1st Dept 2010] [finding that the plaintiff's and the foreman's conflicting versions of the plaintiff's accident did not preclude summary judgment on the issue of liability under Labor Law § 240 (1) where the record demonstrated that the scaffold from which the plaintiff fell was not properly designed and constructed]; see also Dias v City of New York, 110 AD3d 577 [1st Dept 2013] [finding that Labor Law § 240 (1) was violated under either version of the plaintiff's accident where the plaintiff's coworker's affidavit stated that the plaintiff was directing a backfill truck to a water main trench before he fell into the trench]. In the instant action, there is no dispute that plaintiff was injured as the result of a fall from an elevated work site, specifically the scaffold, so as to bring this issue squarely into the purview of Labor Law § 240 (1). Plaintiff testified that he fell because the scaffold moved. According to Ladikos, plaintiff fell because the lanyard was improperly hooked to his harness. However, in both versions, plaintiff fell from an elevated work site, therefore Labor Law § 240 (1) is implicated. At most Ladikos's testimony amounts to allegations of plaintiff's contributory negligence which is insufficient to warrant a denial of summary judgment (see Romanczuk, 72 AD3d at 593 [1st Dept 2010] [finding that "[p]laintiff's conduct, at most, constituted comparative negligence, which is not a defense under Labor Law § 240 (1)"] [internal citations omitted]). "It is settled that liability imposed under Labor Law § 240 (1) is absolute, rendering any alleged negligence on the part of the plaintiff irrelevant" (Kyle v City of New York, 268 AD2d 192, 196 [1st Dept 2000] [internal citations omitted]). "[A] claim of comparative negligence on plaintiff's part does not defeat summary judgment, unless [the] plaintiff's conduct was the sole proximate cause of his accident" (Vergara, 21 AD3d at 281 [internal citations omitted]).
Here, there is no evidence demonstrating that plaintiff's conduct was the sole proximate cause of his accident. Under plaintiff's version of events, his fall was caused by the movement of the scaffold, which should not have occurred (Faruqui tr at 56:16-17). Under defendants' version of events, plaintiff fell because he tripped on the lanyard attached to his harness. However, according to Faruqi, the scaffold was designed to be used without a harness and thus USA Electrical's mandate that plaintiff use a harness while on the scaffold shows that plaintiff was provided with an inappropriate safety device (Faruqui tr at 56-58; Ladikos tr at 9; Samouhos tr at 57-58). Thus, under either version of the events, either defective or inadequate safety devices constituted a proximate cause of the accident (Vergara v. SS 133 West 21, LLC, 21 AD3d 279, 280 [1st Dep't 2005]). Therefore, plaintiff's motion for partial summary judgement under Labor Law § 240 (1) must be granted.
Labor Law § 200 and Common-law Negligence Claims
Owner Defendants move for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims as against them. Labor Law § 200 (1) provides:
"All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section."
It is well established that Labor Law § 200 is a codification of the common-law duty imposed upon landowners and general contractors to provide workers with a reasonably safe place to work (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]), and, therefore, the same standards apply to both Labor Law § 200 and common-law negligence theories of recovery. "Liability pursuant to Labor Law § 200 may fall into two broad categories: workers 'injured as a result of dangerous or defective premises condition at a work site, and those involving the manner in which the work is performed'" (McLean v 405 Webster Ave. Assoc., 98 AD3d 1090, 1093 [2d Dept 2012], quoting Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]).
Owner Defendants argue that plaintiff's claims should be analyzed under the "means and methods" theory as the accident did not arise from a "dangerous condition" on the premises, and under this theory, plaintiff's claims should be dismissed because they did not have any control in the manner in which the work was performed. In opposition, plaintiff argues that Owner Defendants had the authority to control the work that caused the accident, and that there is a question of fact as to whether Owner Defendants had constructive notice of the defective condition of the scaffold vibrating. USA Electrical also opposes this branch of the motion arguing that Owner Defendants did not make a prima facie showing that they did not cause or create the defective condition.
When an injury arises out of a dangerous or defective premises condition, "a property owner is liable under Labor Law § 200 when the owner created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice" (Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011] [internal quotation marks and citation omitted]). To prevail on a claim under Labor Law § 200 and common-law negligence, where the injury arises out of the means and methods of the construction work, the plaintiff must establish that the defendant supervised or controlled the activity giving rise to the injury (see Hughes v Tishman Constr. Corp., 40 AD3d 305, 306 [1st Dept 2007]; Cahill v Triborough Bridge & Tunnel Auth., 31 AD3d 347, 350 [1st Dept 2006]). General supervision over the work, including coordination of the trades and inspection of quality of the work, is insufficient to impose liability (see Hughes, 40 AD3d at 306).
There is no evidence in the record indicating that Owner Defendants supervised or controlled plaintiff's work. The record shows plaintiff was only given instructions by his employer, USA Electrical, and he had no interactions with the Owner Defendants. "[T]he right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence" (Banscher v Actus Lend Lease, LLC, 132 AD3d 707, 709, [2d Dept 2015] [internal quotation marks and citation omitted]). Plaintiff relies on Eisenberg's deposition testimony regarding the responsibilities of Eisenberg himself, but nothing in Eisenberg's deposition testimony amounts to anything more than "the right to generally supervise the work" (id.). Nothing in this testimony demonstrates supervision or authority to control or direct the means and methods of the work performed. Moreover, there is no evidence to show that Owner Defendants created the alleged dangerous condition or that they had notice of it prior to the accident. "If [a subcontractor] furnishes a ladder or a scaffold for the [sub]contractor's employees to work on, he must be careful to furnish a safe appliance. . . . [Ladders or scaffolds] are no[t] part of the [premises] . . ." (Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136, 146 [1965]). Here the scaffold was provided by Roma, not the Owner Defendants, therefore the scaffold was a device involving the means and method of the work, not part of the premises for which Owner Defendants would have a responsibility. As discussed previously, Owner Defendants had no supervision or control over the means and method of the work. In addition, plaintiff relies on deposition transcripts that show USA Electrical employees were aware of the vibration of the scaffold and that Eisenberg was occasionally present on the job site, but this is insufficient for constructive notice of a defect in the scaffold. No safety complaints were made to the Owner Defendants prior to the accident (see Urbano v Rockefeller Ctr. North, Inc., 91 AD3d 549, 550, [1st Dept 2012]). Thus, Owner Defendants' branch of the motion to dismiss plaintiff's Labor Law § 200 and common-law negligence claims must be granted.
USA Electrical Motion
USA Electrical moves for summary judgment in its favor dismissing all claims for contribution and common-law indemnification as against it. USA Electrical argues that these claims are barred by Workers' Compensation Law § 11 as it is undisputed that plaintiff was working for USA Electrical at the time the accident occurred, received workers compensation benefits for his injuries and did not suffer a "grave injury" as defined by Workers' Compensation Law § 11. USA Electrical, as plaintiff's employer, would only be liable for common-law contribution and indemnification if the plaintiff suffered a "grave injury" as a result of the accident (Owens v Jea Bus Co., 161 AD3d 1188, 1190 [2d Dep't 2018]). The term "grave injury" is narrowly defined by the statute and thus the only determination that needs to be made is whether the injury falls within the statute's objective requirements (Castro v United Container Machinery Group, Inc., 96 NY2d 398, 401 [2001]). Here, USA Electrical has met its prima facie burden of showing that plaintiff did not suffer a grave injury by submitting plaintiff's verified bill of particular and supplemental verified bill of particulars, in which plaintiff's claimed injuries consist of injuries to his spine, in addition to complaints of difficulty sleeping and with sexual function (Nat'l Union Fire Ins. v 221-223 W. 82 Owners Corp., 120 AD 3d 1140, 1140 [1st Dep't 2014]). Roma, the only party opposing the dismissal of these claims, failed to raise an issue of fact in opposition to the motion. Thus, the common law contribution and indemnification claims against USA Electrical must be dismissed.
USA Electrical also moves for summary judgment in its favor dismissing the contractual indemnity claims as against it by Owner Defendants and Roma as USA Electrical did not enter into a contract with any party in this action except Evco. Owner Defendants and Roma do not oppose this branch of USA Electrical's motion. USA Electrical clarifies in its motion papers that it does not move for summary judgment dismissing Evco's contractual indemnity claim as against it. Therefore, USA Electrical's branch of the motion seeking dismissal of contractual indemnity claims as against it by Owner Defendants and Roma must be granted.
USA Electrical moves for summary judgment in its favor dismissing Evco's failure to procure insurance claims as against it as its allegation that USA Electrical provided insufficient coverage is flatly refuted by the policy documents. Evco does not oppose this branch of the motion. Therefore, this branch of USA Electrical's motion must be granted.
Owner Defendants Motion on its Indemnification Claims
Owner Defendants move for summary judgment seeking an order granting their common-law indemnification claims against USA Electrical, Evco, and Roma, or, in the alternative, granting their claims for contractual indemnification against Evco. "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'" (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]; see also Priestly v Montefiore Med. Ctr./Einstein Med. Ctr., 10 AD3d 493, 495 [1st Dept 2004]). Likewise, the indemnification provision in the Owner Defendants' contract with Evco provides that Evco shall indemnify Owner Defendants for damages arising from the work only to the extent such damages were caused by Evco or its subcontractors (Ury Aff, Exh. Z, § 3.18). Here, Owner Defendants fail to show that the accident was caused by the negligent acts of Evco, Roma or USA Electrical, and thus its motion for summary judgment on its common law and contractual indemnification claims must be denied.
CONCLUSION
Accordingly, it is hereby
ORDERED that the motion for summary judgment by second third-party defendant USA Electrical Services Corp. is granted; and it is further
ORDERED that plaintiff Georgios Glykas's motion for partial summary judgment against defendants Roosevelt Island Operating Corporation, North Town Roosevelt, LLC, and Evco Mechanical Corporation on the issue of liability under Labor Law § 240 (1) is granted; and it is further
ORDERED that motion for summary judgment by defendants North Town Roosevelt, LLC, Urban Greenfit SPV, LLC, Roosevelt Island Operating Corporation, Putnam Holding Company, LLC, and Urban American Management Corp is granted to the extent that plaintiffs' Labor Law § 200 claim against these defendants is dismissed, and is otherwise denied. Dated: 3/21/19
ENTER:
/s/_________