Vigilante v City of New York

[*1] Vigilante v City of New York 2005 NY Slip Op 51126(U) Decided on May 23, 2005 Supreme Court, Richmond County Mega, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 23, 2005
Supreme Court, Richmond County

Donald Vigilante, Plaintiff(s),

against

THE City of New York and VERIZON NEW YORK, INC. and GRANITE AVENUE UTILITY CORP., Defendant(s). VERIZON NEW YORK, INC., Third-Party Plaintiff, GRANITE AVENUE UTILITY CORP. and THE INSURANCE CORPORATION OF NEW YORK, Third-Party Defendants. STEPHANIE JENKINS, Plaintiff, THE CITY OF NEW YORK, VERIZON NEW YORK, INC., DONALD A. VIGILANTE and GRANITE AVENUE UTILITY CORP., Defendants. VERIZON NEW YORK, INC. Third-Party Plaintiff, GRANITE AVENUE UTILITY CORP. And THE INSURANCE CORPORATION OF NEW YORK, Third-Party Defendants. VERIZON NEW YORK, INC., Third-Party Plaintiff, -against- GRANITE AVENUE UTILITY CORP. and THE INSURANCE CORPORATION OF NEW YORK, Third-Party Defendants.



STEPHANIE JENKINS, Plaintiff, -against-

against

THE CITY OF NEW YORK, VERIZON NEW YORK, INC., DONALD A. VIGILANTE and GRANITE AVENUE UTILITY CORP., Defendants. VERIZON NEW YORK, INC. Third-Party Plaintiff, -against- GRANITE AVENUE UTILITY CORP. And THE INSURANCE CORPORATION OF NEW YORK, Third-Party Defendants.



10023/02

Christopher J. Mega, J.

Upon the foregoing papers, the motion (No. 146) of defendant/third-party plaintiff VERIZON NEW YORK, INC. for summary judgment dismissing plaintiffs' claims against it, and for summary judgment in its favor on its claim for contractual indemnification from third-party defendants GRANITE AVENUE UTILITY CORP. and THE INSURANCE CORPORATION OF NEW YORK is granted as to the former. The cross motion (No. 351) of plaintiff DONALD VIGILANTE for a special preference is denied.

Plaintiff DONALD VIGILANTE ("VIGILANTE") commenced this action to recover [*2]damages for injuries sustained by him on May 4, 2001 when the motorcycle he was driving entered an area of uneven or broken roadway, causing him to lose control, travel across a double yellow line and strike an automobile owned and operated by defendant LEONARDO MELILLO. It has been alleged that excavation work was performed at that same location by defendant VERIZON NEW YORK INC. ("VERIZON") and/or its subcontractor GRANITE AVENUE UTILITY CORP. ("GRANITE"). VERIZON thereafter commenced a third-party action against GRANITE and THE INSURANCE CORPORATION OF NEW YORK ("ICNY") for indemnification pursuant to its contract with GRANITE. A separate action commenced by STEPHANIE JENKINS ("JENKINS"), a passenger on the motorcycle, was subsequently joined for the purposes of trial with the VIGILANTE action, and GRANITE was added as a direct defendant in both actions. The joined actions were thereafter dismissed as against defendant LEONARD MELILLO, the driver of the vehicle struck by VIGILANTE.

In moving for summary judgment dismissing both VIGILANTE and JENKINS' claims as against it, as well as for summary judgment against GRANITE in its third-party indemnification action, VERIZON maintains that its contract with GRANITE required the latter to perform all of the excavation and paving work on the roadway including backfilling and restoring the roadway at the alleged accident location upon completion. VERIZON further contends that its contract provided for full indemnification, including costs and reasonable attorneys' fees, for, inter alia, any liability for injuries to persons or property which may result from the acts or omissions of GRANITE in the performance of this contract. VERIZON contends that the evidence adduced during discovery indicates that plaintiffs VIGILANTE and JENKINS were injured as the result of GRANITE's acts or omissions as the sole contractor at the accident site, and that there is no competent proof of any negligence on the part of VERIZON.

In support of its application, VERIZON submits a copy of the EBT transcript of a VERIZON inspector, Arthur Delprete, who testified that the work performed at the accident location was done solely by GRANITE, and that he was present at the site approximately three times per week. Specifically, VERIZON contends that its contract with GRANITE required the work to be performed between March 7, 2001 and May 17, 2001, and that GRANITE performed work at the subject location on March 7, 8 and 15, 2001, all prior to the date of the accident, which occurred on May 4, 2001. It is also claimed that no other contractor performed any work at the accident site prior to May 4, 2001. VERIZON also submits a copy of the EBT transcript of GRANITE's president, John Barata, Jr., which confirms that GRANITE performed all of the work at the accident site pursuant to is contract.

In opposition, plaintiff VIGILANTE contends that VERIZON is not entitled to summary judgment because it maintained control over the work being performed at the accident site and, therefore, issues of fact exist regarding VERIZON's negligence. VIGILANTE specifically ________________________

contends and VERIZON disputes that in addition to Mr. Delprete's presence, VERIZON had its own engineer at the site, and that it was VERIZON, not GRANITE, that was issued an Environmental Control Board violation for leaving an open trench in the roadway in March 2001, some two months prior to the accident. [*3]

In its opposition, GRANITE argues that VERIZON's motion is premature, that there has yet to be a determination of the liability of any party, and that issues of fact exist regarding that liability. More importantly, GRANITE contends that plaintiff's accident occurred on May 4, 2001, four days before GRANITE began its work at the accident site and, therefore, it is neither responsible for plaintiff's injuries nor required to indemnify VERIZON. Finally, GRANITE

argues in the alternative, that even if it did perform construction at the accident site before the accident occurred, issues of fact exist regarding VERIZON's own negligence, since it oversaw and inspected the work and, therefore, may have become aware of the defective condition which allegedly caused plaintiffs' injuries. GRANITE argues that the indemnification clause is invalid to the extent that it allows VERIZON to seek indemnification for its own negligent oversight.

In her opposition, plaintiff STEPHANIE JENKINS contends that VERIZON is liable for the accident because of its supervision and control of the work performed at the accident site, citing the EBT testimony of VERIZON's witness Delprete and argues that summary judgment is not warranted.

In reply to VIGILANTE and third-party defendant GRANITE, VERIZON contends that it does not have to prove that GRANITE was negligent in order to be entitled to indemnification, but rather that GRANITE must submit some proof that VERIZON was negligent in order to avoid indemnification, which it has failed to do. Moreover, VERIZON contends that any proof of negligence on its part sufficient to defeat indemnification must be independent of GRANITE's negligence, and that the alleged failure to discover GRANITE'S negligent work during its periodic inspection of a contractor's work is insufficient in New York to establish control or supervision of a job site (citing e.g. Patterson v. Hennesy, 206 AD2d 919), and is not a bar to summary judgment.

In his cross motion for a trial preference, plaintiff VIGILANTE contends that he is entitled thereto due to the extensive and serious bodily injuries which he sustained as a result of the accident and the financial plight caused by his inability to obtain gainful employment. VIGILANTE further contends that the defendants' willful delay in the exchange of discovery and their continual requests for adjournments have severely hampered his ability to proceed to trial. In support, he cites the within motion as a further attempt to delay the trial of this action.

In opposition to the cross motion, VERIZON contends that its right to indemnification is a legal issue as between itself and GRANITE which it is entitled to litigate. Accordingly, its motion is not a delaying tactic.

In further opposition to the cross motion, GRANITE contends that VIGILANTE is not entitled to special preference because he has not submitted unequivocal proof that the anticipated delay in reaching trial is likely to cause unusual hardship, and that the mere seriousness of his injury without additional facts and circumstances does not warrant the granting of a special preference. In support of its position, GRANITE submits a report by Dr. Robert Orlandi, who examined VIGILANTE at VERIZON's request. Dr. Orlandi found, inter alia, that while he is disabled from very rigorous work and recreational activities, VIGILANTE's surgeries have been successful and his prognosis is stable and favorable. Dr. Orlandi also noted that when physically examined, VIGILANTE, appeared to be in no discomfort.

As the proponent of summary judgment, VERIZON is required to demonstrate its entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the [*4]absence of any material issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320). Once this initial burden has been met, the burden of production shifts to the parties opposing the motion to adduce sufficient evidence revealing the existence of relevant, material issues of fact requiring a trial (id.). Here, it is the opinion of this Court that VERIZON has established, prima facie, its entitlement to summary judgment dismissing plaintiffs' causes of action against it, as well as its indemnification claim as against GRANITE.

The proof submitted by VERIZON indicates that it did not perform any work at the subject location, nor did it cause or contribute to the dangerous condition which allegedly caused plaintiff to lose control of his motorcycle. The available proof indicates that it was GRANITE which was in exclusive control of the project, and that VERIZON's role was limited to that of intermittent oversight approximately three times per week. In this context, neither GRANITE's conjectural claim that VERIZON's inspections "may" have revealed a defect in its work nor VIGILANTE's disputed and unsupported allegation of the presence of a VERIZON engineer at the site constitute a substantial ground for denying summary judgment. In the same context, any claim of negligent inspection by VERIZON would be merely speculative in the absence of any proof to substantiate such a claim. Mere hope that somehow a party will uncover evidence that will prove a case is insufficient to defeat summary judgment (see generally, Plotkin v. Franklin, 179 AD2d 746). Since neither plaintiffs nor GRANITE have submitted any evidence sufficient to raise a triable issue of fact with respect to VERIZON's negligence, it is entitled to summary judgment. Moreover, the apparent conflict in EBT testimony regarding whether or not GRANITE performed any work at the accident site prior to the date of plaintiffs' accident, presents no triable issue as it relates to any possible negligence on the part of VERIZON.[FN1]

With respect to that portion of VERIZON's motion which is for contractual indemnification, the contract between VERIZON and GRANITE contains a detailed indemnification clause requiring GRANITE to indemnify VERIZON for any claims or damages occurring as a result of GRANITE's work, and further provides for the recovery of all costs, expenses and reasonable attorney's fees related to VERIZON's defense and/or enforcement of the indemnification provision. Accordingly, VERIZON is entitled to indemnification for these costs, as well.

With respect to plaintiff VIGILANTE's cross motion for a special preference, CPLR 3403 provides that a special preference may be granted in any action in which the interests of justice will be served by an early trial (CPLR 3403[a][3]). Whether the interests of justice will be so served in any particular case rests within the discretion of the trial court (see Nold v. City of Troy, 94 AD2d 930). Nevertheless, the granting of a special trial preference is an extraordinary [*5]remedy which amounts to favoring one case over the many others which are awaiting trial. Accordingly, it should be granted only where unusual or extraordinary hardship has been convincingly demonstrated (see Rago v. Nationwide Ins. Co., 120 AD2d 579; La Porta v. Fretto Enter, 100 AD2d 713). While this Court is not unmindful of the severity of plaintiff's injuries and his financial concern, it is not of the opinion that his situation rises to that extraordinary level which would warrant the granting of a special preference.

Accordingly, it is

ORDERED that the motion of defendant/third-party plaintiff VERIZON NEW YORK, INC. for summary judgment dismissing the complaint as against it in each action is granted; and it is further

ORDERED that the complaints as against it are hereby severed and dismissed; and it is further

ORDERED that so much of VERIZON's motion as is for summary judgment on its third-party action for contractual indemnification as against third-party defendant GRANITE AVENUE UTILITY CORP. is granted conditionally in the event of the entry of a judgment awarding damages in either plaintiff's favor and against it; and it is further

ORDERED that the balance of VERIZON's motion which is to recover costs, expenses and reasonable attorneys' fees incurred in the defense of this action is granted as against third-party defendant GRANITE AVENUE UTILITY CORP. in accordance with the parties' contract; and it is further

ORDERED that the amount to be awarded to VERIZON under the preceding paragraph is referred to a Judicial Hearing Officer, to hear and report with recommendations; and it is further

ORDERED that the Judicial Hearing Officer shall file his report with all due diligence; and it is further

ORDERED that if trial of the issue hereby referred is not begun within 60 days from the date of this Order, or before such later date as the Judicial Hearing Officer may fix upon good cause shown, this Order shall be cancelled and revoked, shall be remitted by the Judicial Hearing Officer to the Court from which it was issued, and the matter hereby referred shall immediately be returned to the Court for trial of those issues ((22 NYCRR §202.43[d]); and it is further

ORDERED that the motion of plaintiff DONALD VIGILANTE for a special preference is denied.

E N T E R,

/s/

J.S.C.

Dated: May 23, 2005 Footnotes

Footnote 1: Thus, although the EBT testimony of GRANITE's president indicates (1) that the work performed by GRANITE in March 2001 was conducted at a different location (i.e., Richmond Road and Todt Hill Road) and not where the accident occurred (Richmond Road between Otis Avenue and Bryant Avenue), and (2) that it was not until May 8, 2001 that GRANITE performed any work near the accident site, this testimony merely serves to raise issues of fact requiring a trial regarding GRANITE's liability, and does not support any inference of negligence on the part of VERIZON.