Opinion
4514/2005.
Decided February 2, 2010.
Burns Harris, Esq., New York, New York, Plaintiff Attorney, Christopher J. Donadio, Esq.
Malapero Prisco, New York, New York, Defendant Attorney, Ian B. Forman, Esq.
Ronald P. Berman, Esq., New York, New York, Third-Party Defendants.
Defendants/Third-Party Plaintiffs, BRIGHTON ONE LLC, BRIGHTON DEVELOPMENT LLC, ALLIED BRIGHTON LLC, individually and as managing member of BRIGHTON DEVELOPMENT LLC, JOSHUA L. MUSS, individually and as managing member of ALLIED BRIGHTON LLC and ALLIED MANAGEMENT LLC, BRIGHTON CONSTRUCTION CORPORATION and MUSS DEVELOPMENT CORPORATION, (hereinafter "Defendants/Third-Party Plaintiffs"), move this Court for an Order pursuant to CPLR § 3212 for Summary judgment against the Plaintiff and Third-Party Defendant. Third-Party Defendant CARLTON CONCRETE CORPORATION, (hereinafter "CARLTON"), cross moves, without supporting papers, pursuant to CPLR § 2215, for summary judgment dismissing both the Plaintiff's and Third-Party Plaintiffs' complaint.
Upon reading the notice of Motion for summary judgment of Ian B. Forman, Esq., Attorney for Defendants/Third-Party Plaintiffs, BRIGHTON ONE LLC, et al, for summary judgment against Plaintiff and summary judgment against Third-Party Defendants for contractual indemnification, dated March 30th, 2009, together with the Affirmation in Support of Motion of Ian B. Forman, Esq., dated March 30th, 2009, and all exhibits annexed thereto; the Memorandum of Law in Support, dated March 30th, 2009; the Notice of Cross-Motion by Third Party Defendants for an order dismissing the Plaintiff's complaint and the Defendants' Third-Party complaint dated March 27, 2009; the Affirmation in Opposition of Ronald P. Berman, Esq., dated June 8th, 2009, and all exhibits annexed thereto; the Memorandum of Law in Opposition of CARLTON CONCRETE, dated June 8th, 2009; the Affirmation in Opposition of Christopher J. Donadio, Esq., dated July 20th, 2009, and all exhibits annexed thereto; the Reply Affirmation of Won J. Choi, Esq., Attorney for BRIGHTON ONE LLC, et al, dated August 20th, 2009, and all exhibits annexed thereto; the Reply Affirmation of Won J. Choi, Esq., dated September 11th, 2009; and after argument of counsel and due deliberation thereon, Defendant/Third-Party Plaintiffs' motion for Summary judgment against Plaintiff and against Third Party-Defendants is denied and Third-Party Defendant's Cross Motion seeking dismissal of Plaintiff's complaint and Defendants' Third-Party complaint is denied for the reasons set forth below.
FACTS
Plaintiff SEAN LEWIS, (hereinafter "Plaintiff"), seeks compensation for a workplace accident which occurred when he fell off of a plywood ramp, which had cracked.
The accident occurred on April 26th, 2004 at the construction site located at 100 Oceana Drive West, Brooklyn, NY at a building referred to as building "J". At the time of the accident, Plaintiff was employed as a laborer by CARLTON.
Plaintiff's assignment on that day was to receive and move materials on the ramp. He would receive them while standing on the bottom of the ramp, the lower side closest to the building, and then walk up the ramp to pass the materials to the next worker.
The ramp was about 18 inches wide and about 4 feet long. It was made of a single sheet of plywood, two to three inches thick.
Plaintiff's testimony was unclear as to whether the ramp was elevated.
Q — Do I understand correctly that the piece of plywood was sitting on the ground, in contact with the ground, and on the same angle as the ground?
A — Yes.
(Sean Lewis — deposition testimony p. 81)
Q — Was any part of the underside of that plywood raised up from the ground and not touching it?
A — Not that I recall.
(Sean Lewis — deposition testimony p. 83)
Q — At the moment when you felt the plywood wobble and you were standing in the position that you described with your left foot forward, holding the piece of 4x6, what was the distance between the underside of the plywood and the ground beneath it?
A — Three feet, two and a half to three feet. (Sean Lewis — deposition testimony p. 94)
Plaintiff stated it took three to four steps to walk the length of the plywood. Plaintiff was alone on the ramp at the time it cracked. It was not anchored or affixed in any way. When it cracked, Plaintiff fell backward, landing on the ground.
BRIGHTON Defendants allege that the ramp which broke had been built by CARLTON. Plaintiff does not know who built the ramp. Anthony Cappelluti, a building superintendent for BRIGHTON CONSTRUCTION CORPORATION, was on site on the day of the accident but did not witness the accident.
Robert Stern, senior vice president of BRIGHTON CONSTRUCTION CORPORATION, BRIGHTON DEVELOPMENT LLC and MUSS DEVELOPMENT CORPORATION stated that building "J", the site of the accident, was owned by BRIGHTON DEVELOPMENT LLC. BRIGHTON DEVELOPMENT LLC hired BRIGHTON CONSTRUCTION CORPORATION as its agent to oversee and monitor the construction at the complex. BRIGHTON CONSTRUCTION CORPORATION admits it is an authorized representative of BRIGHTON DEVELOPMENT LLC.
ARGUMENTS
Defendants argue that BRIGHTON ONE LLC, should not be a defendant because it does not own building "J", but was formed specifically to take ownership of a different building. Defendants state that ALLIED BRIGHTON LLC neither had an ownership interest in, nor was involved in construction of building "J". Defendants state that ALLIED MANAGEMENT LLC is improperly named because it had no involvement with the construction of building "J". However, they do not state that it was not an owner. Defendants state that MUSS DEVELOPMENT CORPORATION never had an ownership interest in the project nor was it involved in the construction of building "J". Therefore, Defendants argue the complaint against those Defendants should be dismissed.
Defendants further argue that Plaintiff failed to state a cause of action against JOSHUA MUSS as he was merely a principal in an entity that had a partial ownership interest in the property and had no role in construction, supervision or day to day operations of the construction. Defendants argue that the complaint against MUSS as a managing member of ALLIED BRIGHTON must be dismissed as it had neither an ownership interest in building "J", nor was it involved in its construction.
BRIGHTON Defendants also argue that a claim pursuant to Labor Law § 240(1) must fail as Plaintiff's accident did not occur due to an elevation related hazard as the ramp from which he fell was placed on the ground and because the ramp was merely a passageway and therefore the protections of Labor Law § 240(1) do not apply.
BRIGHTON Defendants argue that Labor Law § 241(6) has been improperly pled as the Industrial Code sections alleged by the Plaintiff are inapplicable or insufficient to sustain a cause of action and therefore must be dismissed.
BRIGHTON Defendants further argue that all causes of action related to Labor Law § 200 and common law negligence must be dismissed as a matter of law as they did not direct, supervise or control Plaintiff's work, and had no notice of any defective condition at the work site.
BRIGHTON Defendants argue that the contract required CARLTON to acquire general liability insurance naming them as additional insureds and that CARLTON failed to do so. Finally, BRIGHTON Defendants argue that to the extent they are found liable for Plaintiff's injuries, they are entitled to summary judgment against CARLTON for contractual indemnification pursuant to a contract between them which required CARLTON to indemnify them for any losses arising out of any act or omission by CARLTON.
Plaintiff argues that the motion should be denied because it was made later than 60 days from the note of issue and Defendants failed to provide any justification for the delay.
Plaintiff further argues that Defendants have not demonstrated that BRIGHTON ONE LLC, ALLIED BRIGHTON LLC, ALLIED MANAGEMENT LLC, MUSS DEVELOPMENT LLC AND JOSHUA MUSS are not appropriate parties to this action, specifically that they had neither an ownership or nor involvement in the construction process.
Plaintiff argues Defendants' motion for summary judgment must be denied as to Labor Law § 240(1) as Plaintiff's injury was the result of a fall from elevation, the type of accident the statute was enacted to prevent. Plaintiff argues his use of the ramp was necessary in accessing the work and performing the work itself, and therefore Defendants failed in performing their non delegable duty to ensure the ramp was safe, or to otherwise provide safety equipment.
Plaintiff argues that its claim under Labor Law § 241(6) has been properly pled.
Plaintiff further argues that the deposition of Robert Stern demonstrates that Defendants were involved in the supervision, control and direction of his work and therefore may be charged with a violation of Labor Law § 200.
CARLTON cross moved for summary judgment dismissing both the first party complaint and third party complaint against it but submitted no papers in support of the cross motion.
CARLTON also opposed the BRIGHTON Defendants' motion arguing that because there has been no finding of a violation of Labor Law §§ 240(1) or 241(6), the motion for summary judgment as to indemnification is premature.
ANALYSIS
Timeliness of Motion
Plaintiff argues that Defendants' motion is untimely and produces a copy of the Notice of Motion by Defendants which bears a filing stamp of March 31st, 2009. The time to file a motion for summary judgment was extended by order of Judge Balter to March 30th, 2009.
Defendants produce an affidavit of service which indicates that they served the motion on March 30, 2009.
A motion is made by service not filing, and therefore Defendants' affidavit of service that the motion was served on March 30, 2009 demonstrates that the motion is timely.
Properly named Defendants
BRIGHTON DEVELOPMENT LLC as owner of the "J" building is a proper party. BRIGHTON DEVELOPMENT LLC did not hire a general contractor but hired BRIGHTON CONSTRUCTION CORPORATION as their representative to oversee the construction. As an agent of the owner, BRIGHTON CONSTRUCTION CORPORATION is a proper party.
Defendants submit the deposition testimony of Robert Stern in support of their position that certain Defendants were improperly named. Stern is a senior vice president of BRIGHTON CONSTRUCTION CORPORATION, BRIGHTON DEVELOPMENT LLC and MUSS DEVELOPMENT LLC.
Stern states that BRIGHTON ONE LLC and MUSS DEVELOPMENT LLC neither had an ownership interest in the building, nor did they have any involvement in the construction of the project.
He further states that Defendant BRIGHTON ONE LLC was an entity created solely to take ownership interest of a different building in the development, and had no ownership interest in building "J", where the accident occurred. He states that MUSS DEVELOPMENT CORPORATION had no ownership interest in building "J" and would manage the building only after construction.
He was familiar with neither Defendant ALLIED BRIGHTON LLC, nor with ALLIED MANAGEMENT LLC. He also stated that JOSHUA MUSS was a principle in an entity which had an ownership interest in building "J".
Stern's affidavit is sufficient to shift the burden to Plaintiff to come forth with some evidence to show there is at least a question of fact as to whether BRIGHTON ONE LLC or MUSS DEVELOPMENT LLC had an ownership interest in building "J" or a role in its construction.
Plaintiff submits no evidence showing that Defendants BRIGHTON ONE LLC, and MUSS DEVELOPMENT CORPORATION had either an ownership interest in the building, was an agent or general contractor of the owner, or supervised the construction. The claims against BRIGHTON ONE LLC and MUSS DEVELOPMENT should be dismissed.
However, Sterns's statement that ALLIED BRIGHTON LLC and ALLIED MANAGEMENT LLC are not to his knowledge owners or involved with the construction is insufficient to show they were not proper parties because he also stated he was not familiar with them. This is particularly so where BRIGHTON Defendants' attorneys answered for ALLIED BRIGHTON and ALLIED MANAGEMENT but offered no affidavit from anyone with knowledge as to who these Defendants are and what their role in the project, if any, was. Further, Stern's affidavit indicating that JOSHUA MUSS was a principle in one of the entities that had a partial interest in the building is too vague as to his actual interest to support granting summary judgment dismissing the claims pursuant to Labor Law § 240(1) and § 241(6), as to him.
Labor Law Section 240(1)Plaintiff's work on the day of the accident was to move materials. He was passed the materials at the bottom of the ramp, walked approximately four steps to the top of the ramp, and then passed the materials to another worker. He states in his deposition that he stood on the ramp while materials were handed to him.
Plaintiff stated that he carried materials constantly back and forth across the ramp, maybe one hundred times, since he began that day.
At one point while Plaintiff was carrying material across the ramp, he felt a wobble, heard a crack and then Plaintiff fell. It is unclear from Plaintiff's testimony exactly how the ramp was positioned, and at what elevation, if any.
A plaintiff must show that they were subject to particular risk because of "the relative elevation at which the task [had to] be performed or at which materials or loads [had to] be positioned or secured". Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 (1991).
A ramp can be considered a defective safety device within the meaning of § 240(1) under certain circumstances.
A case on point is Cangialosi v. Gotham Construction Company, LLC., 22 Misc 3d 189, 865 NYS2d 892 (Sup Ct Kings 2008), in which the plaintiffs were carrying materials necessary to do work on site. The Court granted the plaintiffs summary judgment on § 240(1) where a section of lumber being used as the floor was not properly braced and moved, causing the fall.
The Court in Cangialosi surveyed recent cases which found that work apparatuses which are used in place of devices enumerated in 240(1) have been found to constitute violations of that statute.
The "presumption of employer liability" ( see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d at 285) applies where there is a collapse of any of the "elevation-related safety devices" ( see Ball v Cascade Tissue Group-N.Y., Inc. , 36 AD3d 1187 , 1188 [3d Dept 2007]), including the "functional equivalent of a scaffold" ( see De Jara v 44-14 Newtown Rd. Apt. CORPORATION, 307 AD2d 948, 949-950 [2d Dept 2003] [fire escape]; see also Dos Santos v State of New York, 300 AD2d at 434 [elevated lift truck]; Becerra v City of New York, 261 AD2d 188, 189 [1st Dept 1999] ["unsecured plywood boards . . . served, conceptually and functionally, as an elevated platform or scaffold"]; Lightfoot v State of New York, 245 AD2d 488, 488 [2d Dept 1997] ["truck . . . used as a platform"]).
The questions in the present case is whether the ramp was being used as a passageway or as a platform for Plaintiff's work, and if it was the work area, whether it was elevated sufficiently to permit Plaintiff to seek relief under Labor Law § 240(1).
In Donohue v. CJAM Associates, LLC , 22 AD3d 710 , 803 NYS2d 132 (2nd Dept 2005), the Second Department addressed the distinction between when a ramp is used to access work area and when it is part of a work site. In Donohue, the plaintiff fell from a ramp which provided workers access to the work site. The Court held that Labor Law § 240(1) did not apply, reasoning the ramp "was not being utilized as a ladder, scaffold, hoist or other safety device for the benefit of the injured plaintiff in his work. Rather, it was used as a passageway for laborers at the work site and, as such, did not come within the purview of Labor Law § 240(1)."
In Jenkins v. Board of Managers of Southampton Meadows Condominium, 269 AD2d 427, 703 NYS2d 725, (2nd Dept 2000), the injured plaintiff was "required to walk across a plank that had been placed across a three-feet-deep trench at a construction site. While walking across the plank carrying a hose over his shoulder, the plank became dislodged and the plaintiff fell, sustaining injuries ." The Court affirmed the lower court's grant of partial summary judgment to plaintiff worker as to Labor Law § 240(1).
In Missico v. Tops Markets, Inc., 305 AD2d 1052, 758 NYS2d 890 (4th Dept 2003), in which a worker fell while pushing a wheelbarrow with debris up a ramp to a dumpster, the Fourth Department held that 240(1) applied because the ramp was a tool used in the performance of the plaintiff's work and not merely as a passageway from one place of work to another.
Conversely, in Paul v. Ryan Homes , 5 AD3d 58 , 774 NYS2d 225 (4th Dept 2004), the Fourth Department held that where a painter fell from an unsecured plank while carrying paint into the house, the plank was merely a passageway from one place of work to another and § 240(1) did not apply.
In creating the distinction between when a fall from an unsecured plank is covered and when it is not, the Court in Paul v. Ryan Homes cites Straight v. McCarthy Bros. Co., 222 A.D. .2d 775 (3rd Dept 1995), which held that § 240(1) did not apply to a plank that was used as a passageway for the transport of materials. However, in Straight, the Court stated that the plaintiff "could gain access to the building without utilizing the plank in question", making it clear that the plank was merely a means to get to the work site and not part of the site itself.
In support of his position, Plaintiff submits an affidavit of a site safety expert, Kathleen Hopkins. Hopkins reviewed Plaintiff's testimony and bills of particular and concluded that the ramp was the equivalent of a scaffold platform which provided a bridge over the foundation excavation.
Defendants submitted no evidence to refute Plaintiff's account of what work he was doing at the time of the accident. Accepting for this motion Plaintiff's version of events as true, he was not using the ramp to travel from one area to another. Similar to the situation to Missico v. Tops Markets, Inc., ( 305 AD2d 1052, 758 NYS2d 890 [4th Dept 2003]), his sole job that day was to transport material from one end of the ramp to the other. He was using the ramp as a platform to perform the job of moving materials; as such the ramp comes within § 240(1), if it was elevated.
The next question to be considered was whether the ramp was elevated. Plaintiff's testimony on this point is not clear.
Plaintiff stated that it was sitting on dirt and rocks. He goes on to state that the underside of the plywood was on the ground and that no part of the plywood was raised up from and not touching the ground. However, Plaintiff also states that the underside of the plywood was two and a half to three feet off the ground. It is unclear whether Plaintiff's testimony as to the ramp sitting on dirt and rocks referred to the entire length and width of the ramp, or a single edge, or something else.
Defendants cite McCague v Walsh Constr., 225 AD2d 530, 638 NYS2d 752 (2nd Dept 1996) which held that an 18" elevation of a work site was insufficient to trigger the protections of Labor Law § 240(1).
Defendants also cite Amo v. Little Rapids CORPORATION, 268 AD2d 712, 701 NYS2d 517 (3rd Dept 2000) for the proposition that Plaintiff was not injured as the result of an elevation related hazard. In Amo, the Third Department reversed a directed verdict granted to the plaintiff pursuant to Labor Law § 240(1). The Court found there were "inconsistent accounts of the precise manner and extent of plaintiff's fall", and that the outstanding factual issue of the height from which plaintiff fell should have been submitted to the jury to decide. Id., at 718.
Similarly, in this case, as Defendants admit in their motion papers, Plaintiff's testimony was inconsistent regarding the ramp. Plaintiff did testify at one point that the ramp was elevated 2-3 feet. Since Plaintiff's was the only testimony as to where the ramp was placed and how high the elevation, if any, was, there remain questions of fact which prevents granting summary judgment on whether Labor Law § 240(1) was violated.
Labor Law Section 241(6)Labor Law § 241(6) imposes certain safety requirements upon owners, general contractors and their agents.
The liability imposed on owners, general contractors, and their agents, is absolute, non-delegable, and unrelated to questions of negligence when injuries occur to a worker as a result of their breach of such requirements irrespective of whether they controlled, directed or supervised the work site. Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513, 493 NYS2d 102 (1985); Page v. La Buzzetta, 73 AD2d 483, 426 NYS2d 597 (3rd Dept 1980); Allen v. Cloutier Construction CORPORATION, 44 NY2d 290, 405 NYS2d 630 (1978).
To establish a cause of action under Labor Law § 241(6), a plaintiff has the burden of proving that the defendants violated a rule or regulation of the NYS Commissioner of Labor, who set forth specific standards of conduct in the NYS Industrial Code. Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 601 NYS2d 49 (1993); see also, Owen v. Commer. Sites, Inc., 284 AD2d 315, 725 NYS2d 574 (2nd Dept. 2001) (find that a plaintiff must plead a violation of the NYS Industrial Code).
Plaintiff cited multiple alleged violations of the Industrial Code in his complaint, each of which was either too general or not relevant to the accident at hand, except for Code Section 23-1.22.
Section 23-1.22., Structural Runways, Ramps and Platforms, subsection (b)(1) reads, in relevant part, (1) All runways and ramps shall be substantially constructed and securely braced and supported. Subsection (b)(2) reads, in relevant part, "[r]unways and ramps constructed for the use of persons only shall be at least 18 inches in width and shall be constructed of planking at least two inches thick full size or metal of equivalent strength. Such surface shall be substantially supported and braced to prevent excessive spring or deflection".
While Plaintiff admitted that the ramp was two to three inches thick, he also testified that the ramp consisted of a single sheet of plywood. This testimony taken together with his testimony that the plywood wobbled and cracked would support the conclusion that the ramp was not substantially braced, and supported for the load it needed to support, in violation of § 23-1.22.
Affording Plaintiff's testimony the benefit of all reasonable inferences, there is a question of fact as to whether the plywood ramp was properly braced and supported as required by § 23-1.22 and whether that failure caused the ramp to crack. Therefore BRIGHTON Defendants have not met their burden for summary judgment as to the § 241(6) claim.
Labor Law Section 200 and Common Law Negligence
Defendants move to dismiss Plaintiff's claims under Labor Law § 200 and theories of common law negligence as against them.
"To establish liability against an owner or general contractor pursuant to the Labor Law provision requiring landowners to provide workers with a reasonably safe place to work, it must be established that the owner or general contractor exercised supervision and control over the work performed at the site, or had actual or constructive notice of the allegedly unsafe condition." McKinney's Labor Law § 200.
Common law and § 200 impose a duty upon employers to provide their employees with a safe place to work. It applies to owners, contractors, or their agents, who had control over, or supervised the work, or who created the dangerous condition and had actual or constructive notice of it. Kim v. Herbert Construction. Co., 275 AD2d 709, 713 NYS2d 190 (2nd Dept 2000).
Where the dangerous condition is created by a contractors methods the owner can not be held liable unless the owner supervised or controlled the work. Zavesky v Decato 223 AD2d 642, 636 NYS2d 419 (2nd Dept 1996). There is no duty imposed upon an owner or general contractor to inspect the machinery and tools furnished by a subcontractor, which that contractor exclusively possesses and controls; nor any duty, after an inspection disclosing defects, to repair defective appliances. Iacono v Frank Frank Contr. Co. 259 NY 377 (1932).
Where an accident is caused not by the method of work, but by a condition of the workplace, a plaintiff need not prove that the owner or construction manager supervised or controlled the work, only that they had notice of the dangerous condition. Griffin v NYCTA, 16 AD3d 202, 791 NYS2d 98 (1st Dept 2005).
Plaintiff stated he did not know who placed the ramp and neither the BRIGHTON Defendants nor CARLTON know who placed the ramp. Ernesto Tersigni stated in his deposition that "Brighton" provided certain items on the work site necessary for CARLTON to do its work, which included overhead protection, ramps and bridges.
If BRIGHTON CONSTRUCTION CORPORATION provided the ramp, they may be liable for having created a dangerous condition.
It is also in dispute whether Defendant BRIGHTON CONSTRUCTION CORPORATION had supervisory authority over the Plaintiff.
According to Robert Stern, there was no general contractor on the job, but rather BRIGHTON CONSTRUCTION CORPORATION, his employer, oversaw the "overall construction of the project". He said it was "his responsibility to make sure there were contractors engaged to perform various portions of the work that had to be performed. .".
Defendants cite the testimony of the Plaintiff to support their position that BRIGHTON DEVELOPMENT LLC and BRIGHTON CONSTRUCTION CORPORATION did not supervise the Plaintiff. The pages they cite from Plaintiff's deposition, however, merely demonstrate that Plaintiff knew the foreman to be called "Joe", and that he was uncertain as to whether the foreman was employed by CARLTON or someone else.
Plaintiff cites the deposition testimony of Robert Stern who stated that Anthony Cappelluti, building superintendent and an employee of BRIGHTON CONSTRUCTION CORPORATION, was on site on a regular basis. Stern further testified that BRIGHTON CONSTRUCTION CORPORATION would make arrangements for CARLTON's carpenters to build wooden steps or ramps as needed for BRIGHTON CONSTRUCTION CORPORATION, making it unclear whether BRIGHTON CONSTRUCTION CORPORATION directed CARLTON's workers.
Furthermore, the testimony of Ernesto Tersigni, principal of CARLTON, cited by Defendants, does not support the conclusion that no supervisory personnel other than CARLTON's employees instructed Plaintiff. Tersigni not only stated that he didn't recall if non CARLTON employees supervised workers, he stated that "Brighton" determined his employees work hours at the site. This there remain questions of fact as to whether BRIGHTON CONSTRUCTION CORPORATION supervised or controlled CARLTON's work.
BRIGHTON CONSTRUCTION CORPORATION has not shown as a matter of law that they are entitled to summary judgment dismissing the Labor Law section 200 and common law negligence claims against them.
BRIGHTON DEVELOPMENT LLC, has not submitted any evidence to show that they did not have the authority to supervise or control Plaintiff's work, and therefore summary judgment as to them must also be denied.
Contractual Indemnification
BRIGHTON Defendants seek summary judgment against CARLTON for contractual indemnification. The contract between CARLTON and BRIGHTON DEVELOPMENT LLC provides that CARLTON, to the extent permitted by law, will indemnify the Owners for any claims arising from CARLTON's work, or any act or omission by CARLTON, including the use, misuse, erection or failure of equipment, including scaffolding.
Even though CARLTON must indemnify the BRIGHTON DEFENDANTS, regardless of whether CARLTON was negligent, BRIGHTON CONSTRUCTION CORPORATION and BRIGHTON DEVELOPMENT LLC must still establish that they were not negligent.
"[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor". Tarpey v. Kolanu Partners, LLC, ___ NYS2d ___, 2009 WL 4981791 (2nd 2009), quoting ( Cava Constr. Co., Inc. v. Gealtec Remodeling CORPORATION , 58 AD3d 660 , 662; see General Obligations Law § 5-322.1; Hirsch v. Blake Hous., LLC , 65 AD3d 570 , 571).
Since it has not yet been determined whether BRIGHTON CONSTRUCTION CORPORATION was negligent, nor whether either BRIGHTON CONSTRUCTION CORPORATION or BRIGHTON DEVELOPMENT will be liable to Plaintiff, summary judgement is premature. For the same reasons, CARLTON's motion to dismiss the contractual indemnification claim must be denied as premature.
Breach of Contract
The BRIGHTON Third-Party Plaintiffs also seek summary judgment against CARLTON for breach of contract for failure to obtain insurance. However, they fail to produce an affidavit or other competent evidence that CARLTON in fact failed to obtain insurance and accordingly summary judgment on that cause of action must be denied.
WHEREFORE, the BRIGHTON Defendants motion for summary judgment on the First Party action is denied and their motion as to the Third Party action is denied and Third Party Defendant CARLTON's motion for summary judgment is denied.
This shall constitute the decision and order of the court.