Opinion
9801/02
02-09-2009
Charles Lodato, Plaintiff, v. Greyhawk North America L.L.C. et ano,, Defendants.
Attorney for Plaintiff Robert C. Fontanelli, P.C.
Attorney for Defendants O'Connor O'Connor Hintz
Karl, Clerkin, Redmond, Ryan
Warshaw, Burstein, Cohen, et al
, J.
The following papers numbered 1 to 4 read on this motion:
Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed1 - 2
Opposing Affidavits (Affirmations)3
Reply Affidavits (Affirmations)4
Affidavit (Affirmation)
Other Papers
Upon the foregoing papers: (1) defendant/third-party plaintiff Greyhawk North America L.L.C. (Greyhawk) moves (a) for an order amending its third-party summons and complaint so as to add defendant Palace Electrical Contractors Inc. (Palace) as a third-party defendant on Greyhawk's cross claims; (b) upon such amendment, granting Greyhawk summary judgment over and against Palace on Greyhawk's cross claims for common-law and contractual indemnification and breach of contract; and (c) upon granting of summary judgment, granting Greyhawk entry of judgment against third-party defendant Nagan Construction, Inc. (Nagan) and Palace for the judgment entered by plaintiff Charles Lodato and fully satisfied by Greyhawk; and (2) Palace cross-moves, pursuant to CPLR 3212, for an order granting summary judgment dismissing Greyhawk's cross claim/third party claim for contractual indemnification.
BACKGROUND AND CONTENTIONS
This motion and cross motion arise out of an incident that occurred on August 11, 2000 while the plaintiff, Charles Lodato, was employed as a construction laborer for fourth- party defendant Magara Construction Co. (Magara) at a project located at, and owned by, the Valley Stream Central High School District, Valley Stream, New York (the District), a non-party to this action. It is contended by plaintiff that the accident was caused while he was atop a scaffold performing ceiling installation work at the South High School Building of said premises, when he came into contact with a live wire located in the ceiling overhead, causing him to fall approximately five feet to the floor and sustain serious injuries.
Greyhawk was retained by the District pursuant to an agreement for construction management services dated August 22, 1999, to provide professional services as Construction Manager in connection with the capital improvement of various district properties and educational facilities. The District also hired Palace to perform the electrical work at its educational facilities, as well as hiring Nagan to perform ceiling renovation work. Nagan subcontracted the work to Magara, which employed plaintiff. Greyhawk did not enter into any contracts with individual contractors or subcontractors for any of the work done at the District.
Plaintiff commenced the instant lawsuit against Greyhawk and Palace by the filing and service of an amended summons and complaint on May 13, 2002. Issue was duly joined thereafter. Contained in Greyhawk's answer were cross claims interposed against Palace for common-law and contractual indemnification. In addition, on or about September 23, 2004, Greyhawk served an additional cross claim against Palace for failure to procure liability insurance for the benefit of Greyhawk, in breach of contract with the District.
In a decision and order dated November 17, 2003, Justice Michael Ambrosio granted plaintiff's motion for summary judgment on plaintiff's causes of action alleging violations of Labor Law sections 240 and 241(6), finding Greyhawk liable as Construction Manager. The order was affirmed by the Appellate Division, Second Department (Lodato v Greyhawk North America, LLC, 39 AD3d 491 [2007]), the court finding that: (1) Greyhawk's contract with the District bestowed upon it the requisite supervisory control and authority so as to become the statutory agent of the owner and be vicariously liable as such for injuries sustained under the statute; (2) Greyhawk's broad responsibility was both that of coordinator and overall supervisor for the work being performed on the job site; and (3) with respect to safety concerns in particular, Greyhawk assumed the District's authority, and responsibility to demand compliance with the applicable safety requirements and to stop the work upon detecting any unsafe practice or condition (Id. at 493).
On or about November 25, 2003, Greyhawk impleaded Nagan, seeking contractual and common-law indemnification and payment of costs and legal fees. Following its service of an answer, Nagan commenced a fourth-party action against Magara and Vito Lodato, individually. In a decision and order dated December 2, 2004, Justice Leon Ruchelsman granted summary judgment in favor of Greyhawk against Nagan for common-law and contractual indemnification, determining that Nagan's contract with the school district required Nagan to indemnify Greyhawk, the owner's representative. With specific relevance to the arguments presented in the instant set of motions, Justice Ruchelsman found that (1) Nagan had provided no proof that Greyhawk maintained some control over the plaintiff's activities, and that plaintiff's testimony demonstrated that he never met any representative of Greyhawk prior to the accident, and never received directives from anyone who worked for Greyhawk; and (2) in merely calling for Greyhawk to perform general safety and supervision over the site, the contract between Greyhawk and the District was insufficient to impose negligence upon Greyhawk for the actions of contractors. Thus, in addition to affording Greyhawk summary judgment, Justice Ruchelsman dismissed plaintiff's causes of action for violations of Labor Law § 200 and common-law negligence.
At the commencement of jury selection, plaintiff's counsel stated on the record that he was discontinuing, with prejudice, plaintiff's Labor Law § 200 claim against Palace. Greyhawk opposed the discontinuance based on Greyhawk's remaining cross claims against Palace for contractual and common-law indemnification. In recognition that Greyhawk's cross claims against Palace would be converted into third-party claims, Justice Ruchelsman allowed plaintiff to proceed with a trial on damages as to Greyhawk, and ruled that following completion of that trial, all third-party claims, including the cross claims, could be the subject of a separate trial. Thereafter, following the completion of jury selection, this court, as the assigned trial judge, severed the third and fourth party claims from the main action and directed that the main action proceed to trial on the issue of damages, forthwith. A jury verdict was rendered and reduced to judgment which was entered on March 10, 2005. On or about April 3, 2007, the Appellate Division, Second Department, issued a Decision and Order which modified the aforementioned judgment. Thereafter, a Second Amended Judgment, with calculations as required by CPLR 5041(e) was submitted by plaintiff and entered on June 26, 2007, satisfied by issuance of a check and the purchase of an annuity, and reflected by plaintiff's filing of a Satisfaction of Judgment with the Office of the County Clerk, County of Kings.
Greyhawk's motion
As noted by Greyhawk, the contract between the District and Palace contained the following indemnification clause:
3.18.1
To the fullest extent permitted by law, the contractor shall indemnify and hold harmless the owner, owner's representative, architect, . . . and employees. . . from and against claims, damages, losses and expenses, including but not limited to attorneys fees, arising out of or resulting from the performance of the work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death or to injury. . .but only to the extent caused in whole or in part by negligent acts or omissions of the contractor, a subcontractor, anyone directly or indirectly employed by them or anyone whose acts they may be liable. . .[and] shall. . .specifically include all claims and judgments which may be made against the owner, the architect, . . .under any applicable statute, rule or regulation included in New York's Rules and Regulations. . .
Greyhawk further cites: (1) Section 3.9.2 of the general conditions of Palace's contract with the District, which mandated that Palace was to "coordinate and supervise the work performed by subcontractors so that the work is carried out without conflict between the trades. . . ;" (2) Section 2.1.12 of the general conditions of said contract, which provided that Greyhawk, as the "owner's representative". . . shall not be [responsible] to see to the provisions of or approve safety precautions or any constructions, means, methods, techniques, sequences or procedures, no action taken on the part of the owner's representative shall rise to a duty of responsibility of the owner's representative to the contractor, subcontractor, material or equipment suppliers, their agents or employees or other persons performing portions of the work;" and (3) Section 3.3.1, which provided that Palace was to "supervise and direct the work, using the contractor's best skill and attention. The contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the work under the contract . . . in accordance with construction industry standards" (emphasis in original).Based upon the foregoing contractual language, and relying on judicial determinations it contends are law of case, Greyhawk contends that there is no showing that it was actively negligent, and that the cause of plaintiff's accident was Palace's failure to properly safeguard the installation of its live wiring or exposed wires. Greyhawk thus maintains that Palace was obligated to indemnify and defend both the owner and itself.
Greyhawk further contends that because its liability is only statutory, it is entitled to common-law indemnification from Palace. Palace's cross motion
Palace rejects Greyhawk's contention that it is entitled to common-law indemnification and contractual indemnification. Arguing that strict construction of the contract mandates denial of Grehawk's cross claim, Palace disputes the latter's assertion that it was an "Owner's Representative", noting that under the terms of the Valley Stream-Greyhawk agreement, Greyhawk had the contractual duty to "demand compliance by all subcontractors with all applicable statutes, rules, regulations and codes regarding safety, and had the duty to direct the cessation of work upon becoming aware of any unsafe practice or condition. However, Palace further notes that under the express terms of the Valley Stream-Palace agreement, the "Owner's Representative" did not have the responsibility to see to the provision of or approve safety precautions. It thus argues that if Greyhawk had the duty to demand compliance, and the Owner's Representative had no duty to do so, a priori Greyhawk was not the Owner's Representative. Accordingly, Palace claims entitlement to summary judgment and dismissal of Greyhawk's claim for contractual indemnification, or, at the very least, a determination by the trier of fact that Palace was negligent. With regard to the latter argument, Palace characterizes Greyhawk's assertion that the alleged "live wire" condition arose out of Palace's work, as rank speculation, and states that the testimony of its vice-president, George Dhamin, based upon his review of authenticated photographs of the subject location, as well as his own post-accident inspection, contradicted any finding that the subject wire was a "live wire". Finally, Palace argues that there is no evidence that even if the wire were live, that the condition was created by Palace.
Palace advances the same arguments to support its contention that an issue of fact exists as to Greyhawk's entitlement to common-law indemnification. Greyhawk's opposition
In opposition to Palace's cross motion, Greyhawk argues that with regard to whether Greyhawk is the "owner's representative", the identical contractual language upon which Justice Ruchelsman ruled in the Nagan contract is contained in the Greyhawk contract, thus mandating a finding, based upon said unchallenged ruling being the law of the case, that Greyhawk occupied such status and thus entitled to contractual indemnification. It further relies on determinations of both Justice Ruchelsman and the Appellate Division to support its position that it was a proper "statutory agent" of the owner.
Greyhawk states that Palace never appealed Justice Ruchelsman's order, and Nagan's notice of appeal was never perfected.
Greyhawk further disputes Palace's argument that the instant motion is premature, arguing that Justice Ruchelsman, in his order, recognized that under the contract, Nagan's obligation to indemnify Greyhawk was triggered by the court's finding of an absence of negligence as to Greyhawk, and rejected that a specific finding as to Nagan's negligence was a predicate in granting Greyhawk's motion. Citing what it contends is controlling authority, it reiterates its claim for indemnification under the governing provisions of the contract, and goes on to argue that based upon the testimony of George Dahim, Palace's principal, that Palace was involved in installing electrical wiring in the very area where plaintiff was working at the time of the accident, and that there is no issue that any other entity was so involved, there is an evidentiary foundation for a finding of liability against Palace.
Greyhawk further notes that Palace does not oppose that branch of its motion seeking to amend the caption to reflect the conversion of its cross claims as to Palace to third-party claims. Palace's reply
In reply, Palace claims that Greyhawk's reliance on law of the case is misplaced, and is insufficient to defeat its cross motion.
DISCUSSION
The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law. If this burden cannot be met, the court must deny the relief sought (CPLR 3212; Zuckerman v City of New York, 49 NY2d 557 [1980]). However, once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493 [1989]; see also Zuckerman, 49 NY2d at 562). Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]).
At the outset, the court grants that branch of Greyhawk's motion for amendment of the pleadings, as unopposed.
In the instant matter, Greyhawk has made a prima facie showing of entitlement to judgment on its indemnification claims. Palace has failed to raise an issue of fact to defeat this showing.
A party is entitled to full contractual indemnification for damages incurred in a personal injury suit, provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances (Masciotta v Morse Diesel International, Inc., 303 AD2d 309 [2003]). Where, as here, the contractual provision provides for indemnification where the losses arose out of or as a result of the performance of the work (see Warnett v A.J. Pegno Constr. Corp., 1 AD3d 207 [2003]); there is no evidence that the movant was in no way actively negligent; that it had no notice of a defective or unsafe condition; and it maintained only a general supervisory role without neglecting any such responsibilities, it is entitled to summary judgment on its claim for contractual indemnification (Masciotta, 303 AD2d at 311; see also Zarem v City of New York, 6 AD3d 276 [2004]).
Moreover, the question of Greyhawk's active negligence was, as correctly contended by Greyhawk, determined by Justice Ruchelsman in his order of December 2, 2004, thus implicating the doctrine of law of the case. Said doctrine generally precludes relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue (see Town of Massena v Healthcare Underwriters Mutual Ins. Co., 40 AD3d 1177, 1179 [2007] [citations omitted]). The doctrine is " amorphous' in that it directs a court's discretion,' but does not restrict its authority" (Id.). Although the doctrine is not binding on an appellate court (Donahue v Nassau County Healthcare Corp., 15 AD3d 332 [2005]), its application in barring reconsideration of a previous order governs in the absence of a showing of "manifest error" or "exceptional circumstances" (see People v Martinez, 194 AD2d 741 [1993]); see also Carrier Corp. v New York State Div. of Human Rights, 270 AD2d 796 [2000]). Here, although a close reading of Justice Ruchelsman's order fails to support Greyhawk's rather expansive contention that he determined that Greyhawk was the "owner's representative" under the contract, his determination that Greyhawk was not actively negligent should, pursuant to the doctrine, remain undisturbed.. Indeed, while Palace argues, and cites authority to support its position, that application of the doctrine is discretionary, it identifies no such powerful considerations in the present case so as to mandate a reconsideration of Justice Ruchelsman's order determining that Greyhawk was (1) not actively negligent, and (2) the language of the contract entered into between Greyhawk and the District, which "merely called for Greyhawk's general safety and supervision over the site [was] insufficient to impose negligence upon Greyhawk for the actions of contractors" in granting Greyhawk's motion for summary judgment for contractual indemnification and common-law indemnification against Nagan. Moreover, its unsupported contention that it was denied a full and fair opportunity to litigate the issue is conclusory and unpersuasive.
In any event, a reading of the above-cited, and unchallenged provisions of the Greyhawk-Palace and Palace-District contracts, when read in conjunction with each other, clearly support Greyhawk's contention that it is to be considered the "owner's representative", and Palace was obligated to indemnify and defend Greyhawk, as the owner's representative, in the present action.
Upon the finding that Greyhawk did not direct or control plaintiff's work, the court further grants summary judgment in Greyhawk's favor on the question of common-law indemnification (see Walker v Trustees of University of Pennsylvania, 275 AD2d 266 [2000]).
In view of the foregoing, the court grants Greyhawk's motion in all respects, and denies Palace's cross motion in its entirety.
This constitutes the decision, order and judgment of the court.
ENTER,
J. S. C.