Opinion
Index 20183176
05-20-2021
MARCO MORIN, Plaintiff, v. HERITAGE BUILDERS GROUP, LLC., and JOSEPH DUPUIS d/b/a J and J DRYWALL, Defendants. JOSEPH DUPUIS, Individually and d/b/a J and J DRYWALL, Third-Party Plaintiffs, v. WALL-TECH DRYWALL. LLC. Third-Party Defendant.
Daniel R. Santola, Esq. Powers Santola, LLP Attorney for Plaintiff Albany, York Daniel R. Santola, Esq. Powers & Santola, LLP Attorney for Plaintiff Albany, New York Thomas J. O'Connor, Esq. Ronnie Sills Lindberg, Esq. Napierski, Vandenburgh, Napierski O'Connor, LLP Attorney for Defendant Heritage Builders Group, LLC Albany, York Melissa A. Smallacombe, Esq. Burke, Scolamiero Hurd, LLP Attorrtey for Defendant/Third-Party Plaintiff Joseph Dupuis & J and J Drywall Hudson, New York
Unpublished Opinion
Daniel R. Santola, Esq. Powers Santola, LLP Attorney for Plaintiff Albany, York Daniel R. Santola, Esq. Powers & Santola, LLP Attorney for Plaintiff Albany, New York
Thomas J. O'Connor, Esq. Ronnie Sills Lindberg, Esq. Napierski, Vandenburgh, Napierski O'Connor, LLP Attorney for Defendant Heritage Builders Group, LLC Albany, York
Melissa A. Smallacombe, Esq. Burke, Scolamiero Hurd, LLP Attorrtey for Defendant/Third-Party Plaintiff Joseph Dupuis & J and J Drywall Hudson, New York
DECISION & ORDER
HON. DIANNE N. FREESTONE JUSTICE
Plaintiff Marco Morin commenced this personal injury action on September 26, 2018 by filing a summons and complaint in the Saratoga County Clerk's Office. Thereafter, defendant Heritage Builders Group, LLC (hereinafter referred to as "Heritage") served an answer to the complaint dated October 23, 2018, which interposed nine affirmative defenses and two cross claims for indemnification against defendants Joseph Dupuis (hereinafter individually referred to as "Dupuis") and J and J Drywall (hereinafter collectively referred to as "J & J Drywall"). On or about October 30, 2018. J & J Drywall answered the complaint and asserted thirteen affirmative defenses and a cross claim against Heritage. On November 7, 2018, plaintiff served an amended complaint. On December 3, 2018, J & J Drywall served an answer to plaintiffs amended complaint. On December 27, 2018, Heritage served an amended answer to plaintiffs amended complaint. On December 16, 2019, J & J Drywall filed a third-party summons and complaint seeking indemnification against third-party defendant Wall-Tech Drywall, LLC (hereinafter referred to as "Wall-Tech"). By Order dated June 11, 2020, the Court granted J & J Drywall's motion for a default judgment against Wall-Tech. The parties have served numerous amended pleadings throughout the course of the proceedings concluding with the parties' stipulation to amend pleadings filed on February 7, 2020 wherein the parties consented that the amended answer of Heritage served on December 27, 2018 be deemed withdrawn and that it be substituted with Heritage's second amended answer.
It is worth noting that, on or about January 2, 2020, this matter was reassigned from the Hon. Thomas D. Nolan, Jr. to this Court pursuant to the directives of the Administrative Judge.
On February 15, 2018, plaintiff was working at a construction site of a multi-family dwelling in the Timber Creek Development situated at 44 Cypress Street in the Town of Ballston, Saratoga Count}'. Plaintiff was reportedly injured when the elevated planking he was on, which ran from the scaffold to the windowsill, slipped from the windowsill while he was taping the seam of the sheetrocked cathedral ceiling. Heritage was the owner of said property and Dupuis was the owner of J & J Drywall. Heritage hired J & J Drywall to install the sheetrock at the subject property. J & J Drywall subcontracted with Wall-Tech to tape the sheetrock as part of the construction project. Plaintiff was an employee of Wall-Tech.
Following joinder of issue and discovery, by notice of motion dated February 22, 2021, plaintiff moved for summary judgment on his Labor Law §§ 240(1) and 241(6) causes of action pursuant to CPLR 3212. By notice of motion dated March 29, 2021, Heritage moved for summary judgment on its cross claims for indemnification against J & J Drywall. J and J Drywall opposed Heritage's motion by attorney's affirmation dated April 14, 2021. By notice of motion dated April 15. 2021, J & J Drywall opposed plaintiffs motion and cross-moved for summary judgment dismissing plaintiffs complaint along with the cross claims interposed by Heritage. By notice of motion dated April 16, 2021, Heritage opposed plaintiffs motion and cross-moved for summary judgment dismissing plaintiffs complaint. On April 26, 2021, plaintiff submitted a reply affirmation in support of his motion and in opposition to defendants' motions seeking dismissal of plaintiffs Labor Law § 240(1) and Labor Law § 241(6) causes of action. On April 26, 2021, Heritage submitted a reply to J & J Drywall's opposition to its motion for indemnification. On April 29, 2021, Heritage submitted a reply affirmation in support of heritage's cross-motion for summary judgment and in reply to plaintiffs opposition thereto. On April 29, 2021, J & J Drywall submitted an attorney affirmation in reply to plaintiffs opposition to its cross motion for summary judgment. Finally, on May 13, 2021, the Court afforded the parties an opportunity to virtually argue their respective motions and to address any of the issues contained within said papers.
The proponent of a summary judgment motion is obligated to make a prima facie showing of entitlement to judgment as a matter of law by tendering admissible evidence demonstrating the absence of a material question of fact (see Alvarez v Prospect Hosp, 68 N.Y.2d 320, 324 [1986]; Pullman v Silverman. 28 N.Y.3d 1060, 1062 [2016]; Andrew R. Mancini Associates. Inc. v Mary Imogene Bassett Hosp, 80 A.D.3d 933, 935 [3d Dept 2011]; Smith v Allen. 124 A.D.3d 1128 [3d Dept 2015]; Freitag v Village of Potsdam. 155 A.D.3d 1227, 1229 [3d Dept 2017]). If the moving party meets its initial burden, the burden then shifts to the nonmoving party to produce evidence sufficient to demonstrate a material issue of fact to avoid summary judgment (see Zuckerman v Citv of New York. 49 N.Y.2d 557, 562 [1980]; Stonehill Capital Mat.. LLC v Bank of the W.. 28 N.Y.3d 439, 448 [2016]; U.W. Marx. Inc. v Koko Contr. Inc.. 97 A.D.3d 893, 894 [3d Dept 2012]; Hicks v Berkshire Farm Ctr. & Servs. for Youth. 123 A.D.3d 1319 [3d Dept 2014]). It is well settled that a court reviewing a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party (see Vega v Restani Constr. Corp.. 18 N.Y.3d 499, 503 [2012]: Nomura Asset Capital Corp. v Cadwalader. Wickersham & Taft LLP. 26 N.Y.3d 40, 49 [2015]; Winne v Town of Duanesbure. 86 A.D.3d 779, 780 [3d Dept 2011]; Marra v Hushes. 123 A.D.3d 1307 [3d Dept 2014]). A court '"may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned"' Rock-Wright v O'Connor, 172 A.D.3d 1507, 1509 [3d Dept 2019], quoting Glick & Dolleck v Tri-Pac Export Corp.. 22 N.Y.2d 439, 441 [1968]).
Initially, plaintiffs reply affirmation states in pertinent part, that "[p]laintiff hereby withdraws and discontinues any claim based upon common law negligence and/or section 200 Labor Law." Accordingly, plaintiffs first and fourth causes of action are deemed withdrawn and, as such, are hereby dismissed.
Turning to plaintiffs motion for partial summary judgment on his remaining causes of action, plaintiff contends that he is entitled to summary judgment on his Labor Law § 240(1) and 241(6) causes of action. In support, plaintiff proffered, inter alia, the pleadings, deposition testimony and an expert affidavit from Eugene R. Camerota, a professional engineer with expertise in accident reconstruction and construction accidents.
At his examination before trial, plaintiff testified that Dupuis contacted him regarding some dry wall finishing at a multi-family home in Timber Creek. Plaintiff indicated that he had worked with J & J Drywall on other projects and that they never had a written contract. Plaintiff also indicated that J & J Drywall would supply tools and equipment for him when the job required work above an elevation of 8 feet. Plaintiff testified that he had an aluminum stretch plank and ladder in his truck and had to retrieve one of J & J Drywall's scaffolds for the subject job. Plaintiff testified that he completed taping the second floor with his stilts and. after having a discussion with Dupuis, he retrieved the scaffold from a finished job in Stillwater, New York. Plaintiff testified that he assembled J & J Drywall's scaffold in the kitchen/dining area so he could begin taping the room which had a cathedral ceiling. Plaintiff testified that he setup "the scaffold with a plank running off it all the way to the windowsill." Plaintiff further testified that he was on the aluminum plank at the time of his fall and that it was his intention to run one piece of tape across the entire cathedral ceiling. Plaintiff also testified that he walked out on the platform, had his tools in his hand and was spreading compound when the aluminum plank slipped off the end of the windowsill.
In support of the motion plaintiff also submitted his affidavit. Plaintiff averred that he has been a taper for more than 35 years. Plaintiff averred that "[n]either [him]self nor [his] employer [had] any scaffolding so J & J [Drywall] agreed to provide the scaffolding for this taping job." Plaintiff further averred that the "only scaffolding supplied was one section of tubular metal scaffolding which had a working surface platform of 5 x 7 foot and was approximately 8 foot high." Plaintiff also averred that the process of taping dry wall requires that it "be done in a single stroke or sweep across the entire seam" to avoid "tell tail marks where the ends of the tape overlapped" or cracks where the two ends of tape are put together. Plaintiff attested that "[t]o avoid these unacceptable flaws applying the tape and smoothing it out needs to be done in one continuous application along the entire seam." Plaintiff also described the process of taping when drywall meets at angles greater than 90 degrees such as when taping cathedral ceilings. Plaintiff attested that the tape could not be applied in a continuous strip from the one section of scaffold that was supplied by J & J Drywall. Finally, plaintiff attested that this is how he was taught and how he had done said taping throughout his entire career and that if he had been provided with more sections of scaffolding, he could have set them up to cover the entire length of the kitchen/dining room and performed his taping in a continuous sweep for each step of taping.
Dupuis testified that he has been hanging sheetrock for thirty-five years. Dupuis testified that he would do work for Heritage at the Timber Creek Development. Dupuis testified that plaintiff was never an employee of J & J Drywall but was an independent contractor. Dupuis testified that Mr. Brooks from Heritage was not on the job, but that he had foremen on the job. Dupuis testified that plaintiff brought all his taping tools, ladders and planks but that plaintiff would use J & J Drywall's scaffold. Dupuis testified that, when taping the very peak of a cathedral ceiling, tapers will try and complete it in one sweep because it gives it a nice smooth appearance.
Plaintiffs expert Camerota performed a site examination of a similar unit that had "identical kitchen/dining room measurements and layout as the kitchen/dining area of 44 Cypress Street." Camerota averred that "the step of applying the tape to the mud and adding each of the 3 layers of mud applied over the tape are always done in a continuous single sweep." Camerota further averred that "[t]he reason taping along a seam is not done in separate sections is to prevent the tell-tale lines that will show through the finished and painted drywall seams which are caused by any overlapping of the tape." Camerota also averred that "[i]f attempts are made to butt the ends of the segmented tape, cracks are likely to form" and "[i]t is also difficult to prevent differences in the thickness of the mud as it is applied at the start and stop points." Camerota attested that "[t]he only safety device which would allow the plaintiff to safely perform his work of taping, and to do so in compliance with the Industrial Code Rule and ANSI standards, is scaffolding." Camerota further attested that "[w]hile the defendant did provide one section of scaffolding it was insufficient to perform the work of taping the long seams in the ceiling in a professional manner which calls for the various steps to each be done in one continuous sweep." Camerota opined that "the failure to provide [plaintiff) with approved scaffolding of sufficient size needed to allow the continuous sweep method of taping was a substantial factor in causing the collapse of the stretch plank and resultant injuries."
In opposition and in support of their cross motion, J & J Drywall submitted, among other things, affidavits from Dupuis, Ernest J. Gailor, a professional engineer with experience in design and construction of various structures, and John P. Coniglio, a safety expert. Dupuis averred that he did not have any written contract with plaintiff. Dupuis averred that the scaffold plaintiff used at the time of his accident was owned by J & J Drywall and was free of any defects.
Gailor averred that plaintiff "was provided with adequate safety devi[c]es in the form [of] a scaffold, that no other safety devi[c]es were necessary for the plaintiff to perform his work, and that the accident was caused solely by the plaintiffs failure to use the appropriate safety devi[c]es for the job which was the scaffold that was available to him in the room he was working in." Gailor further averred that "rather than using the scaffold which would have required more labor because it would need to be repositioned occasionally to reach other parts of the ceiling, plaintiff unilaterally elected to set up an unsafe plank platform which caused the accident." Gailor concluded that "plaintiffs misuse of the device and his own actions in designing, an unsafe platform with the use of his extension plank that was not tied down or otherwise supported, rather than just using the provided scaffold to perform the work, was the sole proximate cause of his accident." J & J Drywall also submitted an affidavit from John P. Coniglio their safety expert.
Coniglio disputed plaintiffs assertion that a scaffold be provided to drywall tapers that is the length of the entire tape run. Rather, Coniglio stated that "the contention that one full line of tape was necessary is simply an issue of preference and perhaps convenience." Coniglio averred that the scaffold could have been moved along the tape line without any detriment to the quality of the work being performed. Coniglio stated that the scaffold available to plaintiff was not defective in any manner. Coniglio opined that "J & J Drywall did not violate Labor Law § 240(1) as the appropriate safety device to perform the work was provided to plaintiff to use, to wit, scaffolding."
"Labor Law §§ 240(1) and 241(6) '"impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities'" (Archer-Vail v LHV Precast Inc., 168 A.D.3d 1257, 1259 [3d Dept 2019], quoting Landon v Austin. 88 A.D.3d 1127, 1128 [3d Dept 2011, accord Lieberth v Walden, 223 A.D.2d 978, 979 [3d Dept 1996]). Labor Law § 240(1) states, in relevant part, that
"[a]ll 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""Labor Law § 240(1) requires contractors and owners to provide safety devices adequate to protect workers against elevation-related hazards, and their failure to do so results in liability for any injuries proximately caused thereby" (Bennett v Savage. 192 A.D.3d 1243, 1244 [3d Dept 2021], quoting Georgia v Urbanski, 84 A.D.3d 1569, 1569 [2011]). "The purpose of Labor Law § 240(1) is to protect workers by placing ultimate responsibility on owners and contractors instead of on workers themselves" (Markou v Sano-Rubin Constr. Co.. Inc.. 182 A.D.3d 674, 675 [3d Dept 2020] [internal quotation marks and citation omitted]). The Court of Appeals has held that "it is neither pragmatic nor consistent with the spirit of [Labor Law § 240(1)] to isolate the moment of injury and ignore the general context of the work. The intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts" (Prats v Port Auth. of New York and New Jersey, 100 N.Y.2d 878, 882 [2003]; see Rico-Castro v Do & Co New York Catering. Inc., 60 A.D.3d 749, 750 [2d Dept 2009]). Labor Law § 240(1) "imposes on owners or general contractors and their agents a nondelegable duty, and absolute liability for injuries proximately caused by the failure to provide appropriate safety devices to workers who are subject to elevation-related risks" (Saint v Syracuse Supply Co.. 25 N.Y.3d 117, 124 [2015]). "The statute is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed, and should be construed with a commonsense approach to the realities of the workplace at issue" (Crutch v 421 Kent Dev.. LLC. 192 A.D.3d 977, 979 [2d Dept 2021]; see Nicometi v Vineyards of Fredonia. LLC, 25 N.Y.3d 90, 101 [2015]). "To this end, the safety devices prescribed by Labor Law § 240(1) 'are for the use or protection of persons in gaining access to or working at sites where elevation poses a risk'" (Id., quoting Rocovich v Consol. Edison Co., 78 N.Y.2d 509, 514 [1991]).
"It is well settled that in cases where a worker is provided with an elevation-related safety device, the question of whether the device provided proper protection pursuant to Labor Law § 240(1) is ordinarily a question of fact, except where the device collapses, slips or otherwise fails to perform its function of supporting the worker" (Nephew v Barcomb. 260 A.D.2d 821, 823 [3d Dept 1999]; see Dalaba v City of Schenectady. 61 A.D.3d 1151, 1152 [3d Dept 2009]; Cullen v AT&T. Inc.. 140 A.D.3d 1588, 1590 [4th Dept 2016]; Zholanii v 52 Wooster Holdings. LLC. 188 A.D.3d 1300, 1302 [2d Dept 2020]). This is not a case where there was an utter and complete absence of an available safety device or that the device provided collapsed, slipped or otherwise failed to perform its function (see Ortman v Logsdon. 121 A.D.3d 1388, 1390 [3d Dept 2014]; Scribner v State. 130 A.D.3d 1207, 1208 [3d Dept 2015]). Here, the parties proffered conflicting expert opinions regarding the adequacy of the scaffolding provided herein (see O'Brien v Port Auth. of New York and New Jersey. 29 N.Y.3d 27, 34 [2017]). Inasmuch as the conflicting expert opinions create a triable issue of fact as to whether the scaffold that was provided afforded plaintiff proper protection within the meaning of Labor Law § 240(1), plaintiffs motion for partial summary judgment on this cause of action is denied, without costs. Likewise, defendants' cross motions for summary judgment are also denied, Without costs.
Turing to the third cause of action, Labor Law § 241(6) states that
"[a]ll contractors and owners and their agents ... when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.""Labor Law § 241(6) imposes a nondelegable duty upon owners, contractors and their agents to provide adequate protection and safety for workers and, to establish a claim under this section, [a] plaintiff must allege that [the] defendants violated a rule or regulation promulgated by the Commissioner of Labor that sets forth a specific standard of conduct" (Stewart v ALCOA. Inc.. 184 A.D.3d 1057, 1060 [3d Dept 2020]). "To prevail on a Labor Law § 241(6) claim, a plaintiff must demonstrate the violation of a regulation setting forth a specific standard of conduct applicable to the working conditions which existed at the time of the injury and that the violation was the proximate cause of the injury sustained" (Hall v Qucensbury Union Free Sch. Dist, 147 A.D.3d 1249.1251 [3d Dept 2017] [internal quotation marks and citations omitted]). "The Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace" (Hebbard v United Health Servs. Hosps.. Inc.. 135 A.D.3d 1150, 1151 [3d Dept 2016], quoting St. Louis v Town of N. Elba. 16 N.Y.3d 411, 416 [2011]).
In the case at bar, plaintiffs claim is based upon Industrial Code regulation 12 NYCRR § 23-5.22(c). The regulation provides: "Scaffolds required. Whenever stilts are used, scaffolds commonly used and appropriate for wallboard construction and which are in compliance with this Part (rule) shall be provided at all times such work is being performed. Such scaffolds shall be readily available for any person performing such work who may elect to use such scaffold" (1.2 NYCRR § 23-5.22[c]). Plaintiff contends that "taping of residential apartments and condominium units by professional tapers will always entail the use of stilts" and that J & J Dry wall violated this regulation by failing to provide the requisite number of scaffolding sections for taping the full length of the scam in a single continuous manner. In support of this claim, plaintiff proffered Camerota's affidavit which maintains that stilts could not be used for taping the upper seams of the kitchen ceiling as provided in 12 NYCRRR § 23-5.22 and that scaffolding was required on this project as required by 12 NYCRR § 23-5.22(c).
In response, defendants argue that plaintiff was not using stilts at the time of the accident and that defendants provided adequate scaffolding in compliance with 12 NYCRR § 23-5.18. J &J Drywall's expert Coniglio asserted that none of the purported violations of the Industrial Code occurred and/or were the proximate cause since, as relevant here, 12 NYCRR § 23-5, 22 refers to stilts, which plaintiff was not using at the time of his accident.
The Court finds that plaintiffs Labor Law § 241 (6) claim should be dismissed in its entirety since plaintiff was not using stilts for the job at the time of his fall (see Delahave v St. Anns School. 40 A.D.3d 679, 685 [2d Dept 2007][Plaintiffsought to assert a violation of 12 NYCRR § 23-5.22; however, the Court found that the record revealed that plaintiff did not use stills for the job and that this particular code provision was inapplicable]; Sasso v NYMED Inc.. 238 A.D.2d 799, 801 [3d Dept 1997]; compare Gonzalez v Magestic Fine Custom Home. 115 A.D.3d 798, 799 [2d Dept 2014]). Accordingly, plaintiffs motion for partial summary judgment is denied and defendants' cross motions to dismiss said claim are granted, without costs.
With regard to Heritage's motion for summary judgment on its indemnification claims against J & J Dry wall, Heritage contends that, pursuant to the parties' January 1, 2018 agreement, J & J Drywall should indemnify and hold Heritage harmless herein. "Indemnification is the right to complete reimbursement for a liability imposed by law" (1 Warren's Negligence in the New York Courts § 8.01 [2020]). "A right of indemnification may be created by an express agreement between the parties, or it may arise, by operation of law as an implied, or common law, right to indemnity" (Id.). "[A] party's right to contractual indemnification depends upon the specific language of the relevant contract" (Morris v Home Depot USA. 152 A.D.3d 669, 672 [2d Dept 2017]). "The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances" (Bleich v Metropolitan Met.. LLC. 132 A.D.3d 933, 934 [2d Dept 2015]). Finally, "[t]o 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" (Provens v Ben-Fall Dev.. LLC. 163 A.D.3d 1496, 1499 [4th Dept 2018]: see Hackcrt v Emmanuel Cong. United Church of Christ, 130 A.D.3d 1292, 1295 [3d Dept 2015]).
Heritage has tendered a "Standard Form of Agreement Between Contractor and Subcontractor" dated January 1, 2018 between Heritage, as the contractor, and J & J Dry wall, as the subcontractor. Article 1.0 entitled "Indemnification" states that
"[t]o the fullest extent permitted by law, the subcontractor shall indemnify and hold harmless the [o]wner and [c]ontractor and employees of either of them from and against claims, damages, losses and expenses including but not limited to attorney's fees arising out of or resulting from performance of the [subcontractor's [w]ork under this [s]ubcontract provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the [w]ork itself) including loss of use resulting therefrom but only to the extent caused in whole or in part by negligent acts or omissions of the [subcontractor the [subcontractor's [s]ubcontractor's, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder."
J & J Dry wall asserts that there are triable issues of material fact as to whether Heritage is entitled to summary judgment on its contractual indemnification cause of action. In particular, J & J Dry wall claims that defendant Joseph Dupuis testified that the date was not printed in the contract at the time he signed it and that he never signed the subject form before the accident. However, said testimony was included as part of defendant Joseph Dupuis' errata sheet. CPLR 3116(a) provides, in relevant part, that "any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of the reasons given by the witness for making them" (emphasis added) (see Lieblich v St. Peter's Hosp. of City of Albany. 112 A.D.3d 1202, 1206 [3d Dept 2013]). Defendant Joseph Dupuis failed to offer any statement for the reasons for making said changes. Nevertheless, "[a] trial court has the inherent power to permit changes or corrections to a deposition transcript, even though there was a failure to follow the proper procedure" (Keenan v Munday). 79 A.D.3d 1415, 1417 [3d Dept 2010]).
It is well settled that "[u]nless the proposed indemnitee is found to be free from active negligence, conditional summary judgment for either common-law or contractual indemnification against a proposed indemnitor is premature" (Miranda v Norstar Bldg. Corp., 79 A.D.3d 42, 50 [3d Dept 2010], quoting Husted v Central N.Y. Oil & Gas Co.. LLC. 68 A.D.3d 1220, 1223 [3d Dept 2009]). Moreover, "[w]hcre a defendant's alleged liability is purely statutory and vicarious, conditional summary judgment in that defendant's favor on the basis of common-law indemnification Ms premature absent proof, as a matter of law, that [the party from whom indemnification is sought] was negligent or had authority to direct, supervise, and control the work giving rise to the plaintiffs injury'" (Shaughnessy v Huntington Hosp. Assn.. 147 A.D.3d 994, 999 [2d Dept 2017]; see Benedetto v Carrera Realty Corp.. 32 A.D.3d 874, 876 [2d Dept 2006]). The Court finds that Heritage's motion for summary judgment on their indemnification claims must be denied as premature (see Cackett v Gladden Props.. LLC. 183 A.D.3d 419, 422 [1st Dept 2020]; McDonnell v Sandaro Realty. Inc.. 165 A.D.3d 1090, 1098 [2d Dept 2018]: see also Grove v Cornell Univ.. 151 A.D.3d 1813, 1817 [4th Dept 2017]; Harrington v Fernet. 92 A.D.3d 1070, 1072 [3d Dept 2012]).
The foregoing constitutes the Decision and Order of the Court. The Court is hereby forwarding the original Decision and Order and all corresponding motion papers to the Supreme Court Clerk/County Clerk for filing. Counsel is not relieved from the applicable provisions of CPLR 2220 relating to filing and service of notice of entry of this Decision and Order.