Opinion
No. 101131/2006.
06-02-2015
Thomas RODRIGUEZ and Norina Rodriguez, Plaintiff(s), v. TRADES CONSTRUCTION SERVICES CORP., Leewood Real Estate Group/NY LLC, Leewood Real Estate Group, LLC, American Heritage Properties, LLC, Monogram Properties, Inc., Own–A–Home Realty Corp., The Estates at Opal Ridge, and The City of New York, Defendant(s). The City of New York, Third–Party Plaintiff(s), Design Plumbing And Heating Service, Inc., Opal Builders, LLC, Opal Land Homeowners Association, a/k/a Opal Lane Homeowners Association, Inc., Philip Culotta, “John Doe and “Jane Doe” 1 Through 15, ficticious names, true names unknown, the parties intended being any and all persons and/or entities with title or control; in the real property on which the subject accident occurred or exercising control; over the means, methods and machinery which caused the accident, Third–Party Defendant(s).
Opinion
The following papers numbered 1 to 8 were marked fully submitted on the 11th day of March, 2015.
| Papers | Numbered |
|---|---|
| Notice of Motion for Leave to Renew and Reargue by Defendants OPAL BUILDERS, LLC s/h/a ESTATES AT OPAL RIDGE, with Supporting Papers, Exhibits (dated December 12, 2014) | 1 |
| Notice of Cross Motion for Leave to Renew by Defendant/Third–Party Plaintiffs THE CITY OF NEW YORK, with Supporting Papers, Exhibits (dated January 22, 2015) | 2 |
| Notice of Cross Motion for Leave to Renew by Third–Party Defendant DESIGN PLUMBING AND HEATING SERVICES, INC. and PHILIP CULOTTA, with Supporting Papers, Exhibits (dated February 12, 2015) | 3 |
| Affirmation in Opposition by defendant TRADES CONSTRUCTION SERVICES CORP. to the Motion by Defendants OPAL BUILDERS, LLC s/h/a ESTATES AT OPAL RIDGE, with Exhibits (dated January 9, 2015) | 4 |
| Affirmation in Opposition by Third–Party Defendants DESIGN PLUMBING AND HEATING SERVICES, INC., and PHILIP CULOTTA to the Cross Motion of Defendant THE CITY OF NEW YORK, with Exhibits (dated February 12, 2015) | 5 |
| Affirmation in Partial Opposition by Defendant TRADES CONSTRUCTION SERVICES CORP., to the Cross Motion of Defendant/Third–Party Plaintiff THE CITY OF NEW (dated January 29, 2015) | 6 |
| Affirmation in Opposition by Defendant THE CITY OF NEW YORK to the Cross Motion of Third–Party Defendant DESIGN PLUMBING AND HEATING SERVICES, INC., and PHILIP CULOTTA, (dated March 4, 2015) | 7 |
| Reply Affirmation by Defendant OPAL BUILDERS, LLC s/h/a ESTATES AT OPAL RIDGE, (dated February 4, 2015) | 8 |
Upon the foregoing papers, the motion and cross motions are denied.
Plaintiff THOMAS RODRIGUEZ commenced this action to recover damages for injuries allegedly sustained by him on March 14, 2006, while working as a plumbing laborer at a construction site ostensibly owned by defendant/third-party defendant OPAL BUILDERS, LLC, s/h/a THE ESTATES AT OPAL RIDGE (hereinafter OPAL). Defendant TRADES CONSTRUCTION SERVICES CORP. (hereinafter TRADES), the general contractor at the site, was hired by OPAL to build and develop 22 two-family homes, and, as such, was responsible for the hiring of all subcontractors.
Plaintiff's employer, third-party defendant DESIGN PLUMBING and HEATING SERVICE, INC. (hereinafter DESIGN) was the plumbing subcontractor hired by TRADES to install subterranean water and sewer lines at the site, and to connect those lines to the houses in the development. DESIGN was also hired to arrange connection to the CITY's water main, and to obtain a permit from (1) the Department of Transportation (hereinafter DOT) to open the street, and (2) the Department of Environmental Protection (hereinafter DEP) to make the connection. Insofar as it appears, third-party plaintiff THE CITY OF NEW YORK (hereinafter THE CITY) was required to inspect the connection to its water main after DESIGN had excavated the roadway and installed the necessary piping. It further appears that the DEP was required to have an inspector “on site” for the process of making the “wet connection” to THE CITY's water and sewer lines. In addition to arranging for these inspections, it was also the responsibility of DESIGN to dig the trench into which the connecting pipe was to be laid and to make the physical connection to THE CITY's mains. With regard to the trench, it is undisputed that the Department of Buildings and OSHA all require the shoring of trenches that are five or more feet deep, but that no shoring is required for trenches of a lesser depth. Here, the movant and cross movants claim that no shoring was required for the trench accommodating the water main, which was alleged to be only three and one-half feet deep. Plaintiff THOMAS RODRIGUEZ (hereinafter Plaintiff), an employee of DESIGN, was working in the trench when one side collapsed, purportedly causing him to sustain serious injuries.
Plaintiff and his wife thereafter commenced the present action against OPAL, TRADES, THE CITY, et al. alleging violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence. THE CITY subsequently commenced a separate action against DESIGN, its supervisor (PHILLIP CULOTTA), and OPAL, seeking indemnification for their roles in the project to whatever extent THE CITY might be determined to be liable. The two actions were subsequently joined for trial under Index No. 10131/2006.
The derivative claims of plaintiff's wife, NORINA RODRIGUEZ, have been discontinued.
In previous motions, defendants OPAL, TRADES, and THE CITY each moved for summary judgment dismissing plaintiff's claims against them, as well as any cross claim for contractual or common-law indemnification. As part of those proceedings, third-party defendant DESIGN also moved for summary judgment on its cause of action for indemnification, as well as the dismissal of any cross claims for indemnification asserted against it. In its determination of these motions, this Court dismissed plaintiff's claims under Labor Law §§ 240(1) and 241(6) against each of the defendants, as well as dismissing his claims under Labor Law § 200 and common-law negligence as against defendants OPAL and TRADES, (the respective owner and general contractor), in the absence of any proof establishing their supervision, direction or control of the work being performed by plaintiff on the day of the accident. Plaintiff's claims against THE CITY were also dismissed, since it was found to be neither the owner of the property where the accident took place, or the contractor in charge of supervising plaintiff's work. As a result, DESIGN's claims for indemnification against THE CITY were rendered academic.
On October 22, 2014, the Appellate Division, Second Department modified this Court's determination, insofar as appealed from, reversing that portion thereof as pertained exclusively to the dismissal of plaintiff's cause(s) of action against OPAL, TRADES and THE CITY under Labor Law § 241(6) to the extent predicated on the alleged violation of Industrial Code § 23–4.2. To the extent relevant, that section mandates the use of shoring to stabilize trenches and excavations of five feet or more in depth. In doing so, the Appellate Division found a triable issue of fact regarding the depth of the trench, as well as a question regarding the precise location of the accident, e.g., whether it occurred on property owned by OPAL or THE CITY. Accordingly, these aspects of the motions for summary judgment against OPAL, TRADES, and THE CITY were found to be decided incorrectly.
Based on the Appellate Division's decision, defendants OPAL, THE CITY and third-party defendant DESIGN each seek leave to renew and/or reargue those portions of their prior motions insofar as they sought contractual and/or common law indemnification and reimbursement for legal fees.
In particular, OPAL claims that this Court overlooked and misapprehended the law insofar as its cross claim sought a conditional award of common-law and/or contractual indemnification against TRADES as well as reimbursement for its legal fees. In addition, OPAL argues that the motion for leave to reargue is timely since it was made within 35 days of the service, with Notice of Entry, of the decision of the Appellate Division. Insofar as OPAL also seeks leave to renew, it is argued that the Appellate Division's decision constitutes “new evidence” which justifies the making of a renewal motion under CPLR 2221(e)(2), and that it is entitled to summary judgment on its claim for common-law indemnification, since there are no triable issues regarding its liability under Labor Law § 241(6). On this point, OPAL argues that it bears, at worst, an owner's vicarious liability for the misdeeds of TRADES under Labor Law § 241(6), and that it is therefore entitled to a conditional order of indemnification against the latter, which is contractually liable for the recovery of OPAL's legal fees in such event.
It should be noted that contrary to OPAL's argument, the Court did not acknowledge OPAL's entitlement to contractual indemnification in its prior Decision. The paragraph on which OPAL relies merely summarizes the arguments set forth by OPAL in support of indemnification in the prior motion (see OPAL's Affirmation in Support, para 16).
THE CITY also moves for leave to renew its motion for summary judgment on the issue of indemnification against both TRADES and DESIGN. Like OPAL, THE CITY argues that the Appellate Division's determination is a “new fact” which changes the law as it pertains to this case. In addition, since the Appellate Division affirmed the award of summary judgment in favor of THE CITY with regard to Labor Law § 200 and common-law negligence based on its lack of supervision or control over the work being performed by plaintiff, it is further argued that THE CITY could be held liable only on a theory of “strict” liability. Since this issue was never reached either by this Court or the Appellate Division, THE CITY contends that it is a proper issue for resolution on a motion for leave to renew. In that regard, THE CITY claims that it possesses viable causes of action against DESIGN for both contractual and common-law indemnification based on an implied obligation claimed to arise out of its issuance of, e.g., street opening permits, to DESIGN to properly perform its work at the construction site. Similarly to OPAL, THE CITY also argues that it possesses a common-law right of indemnification against TRADES based on THE CITY's potential for being held vicariously liable for the violation, if any, of Labor Law § 241(6) by the general contractor.
Finally, in seeking leave to renew its motion for summary judgment dismissing the third-party complaint and any cross claims for indemnification asserted against it by THE CITY, DESIGN maintains that the Appellate Division's reinstatement of plaintiff's claimed violation of Labor Law § 241(6) against THE CITY renders its cross claims for indemnification ripe for review.
In support, DESIGN also argues that the Appellate Division's reversal constitutes a “new fact” which did not exist at the time that DESIGN filed its initial summary judgment motion. Moreover, DESIGN argues that since plaintiff did not sustain a “grave injury” as defined by Workers' Compensation Law § 11, it cannot be the subject of liability to any third-party for indemnification (see Fleming v.Graham, 10 NY3d 296 ). Finally, DESIGN argues that there was no valid agreement between DESIGN and THE CITY for indemnification and/or contribution based on the terms of the excavation permits issued by THE CITY.
The motion and cross motions are decided as follows.
OPAL's motion for leave to reargue is denied.
On the present papers, OPAL has failed to demonstrate that this Court overlooked any relevant fact, misapprehended the law or, for any other reason, mistakenly arrived at its earlier decision (CPLR 2221[d][2] ; cf. Schneider v. Solowey, 141 A.D.2d 813 ). The Court made no finding on the issue of indemnification as between OPAL and TRADES, but merely found that neither OPAL nor TRADES had supervised any of plaintiff's work. Under these circumstances, the owner and general contractor at the construction site (see Rodriguez v. Trades Constr Servs Corp., 121 AD3d 962, 964 ), would potentially share the same degree of liability under Labor Law § 241(6) in the event that it is ultimately determined that plaintiff's injuries occurred on property owned by OPAL. Hence, notwithstanding the reinstatement of the Labor Law § 241(6) claims as against both OPAL and THE CITY, the question of ownership of the construction site has been held to present a triable issue (id. at 964 ). Absent any determination of ownership of the accident site, the right, if any to indemnification as between OPAL and TRADES must await a trial of the action at which the question of ownership between OPAL and THE CITY can be resolved. Thus, the motion is premature.
Moreover, OPAL's cross claim for contractual indemnification under the terms of the “Specifications and Agreement” and “Hold Harmless and Indemnity Agreement” in its contract with TRADES cannot be determined as a matter of law, since it is unclear whether the negotiated exclusion for “all main storm and sanitary sewer, and water main work” was intended to cover the collapse of the trench in which such work was to be performed Since summary judgment should not be granted “where there is doubt as to the existence of [an] issue, or where the issue is arguable”, OPAL's motion was properly denied (Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404 [internal quotation marks omitted] ).
Similarly, with regard to the motions of DESIGN and THE CITY, the absence of any determination of liability under Labor Law § 241(6) and/or ownership of the accident location renders their reargument motions premature.
Assuming that a motion for leave to renew may be made after an appellate determination (see Matter of Beiny, 132 A.D.2d 190, 191 ), it is provided by statute that the motion must be based on new facts not offered on the prior motion or a change in the law that would alter the prior determination (see CPLR 2221[e][2] ). Here, movants have offered no new facts that would change the prior determination of this Court. Moreover, the Court is unaware of any authority for movants' unsupported argument that the modification of an order on appeal will necessarily lead to the finding of “new facts not offered on the prior motion” nor are any such “facts” discernable in the case at bar. Finally, as previously noted, the conditional orders of indemnification sought by the respective parties are premature given the outstanding issues of liability and ownership which must be resolved at trial .
It should also be noted that the fact that the Appellate Division did not see fit to disturb this Court's prior determination on the issue of indemnification is not necessarily an endorsement thereof, and may only indicate that the issue was not raised on appeal. In all events, the Appellate Division's failure or refusal to address the issue of indemnification does not afford these movants carte blanche to make a second attempt at the relief which they were previously denied in the absence of a reversal.
Accordingly, it is
ORDERED that the motion and cross motions for leave to renew and reargue are denied.