Barracks v Metro N. Commuter R.R.

[*1] Barracks v Metro N. Commuter R.R. 2005 NY Slip Op 51266(U) Decided on March 18, 2005 Supreme Court, New York County Gische, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 18, 2005
Supreme Court, New York County

Neville Barracks, Plaintiff,

against

Metro North Commuter Railroad, d/b/a MTA Metro-North Railroad, Metropolitan Transportation Authority and Granite Halmar Construction Company, Inc. and Northeast Associates, Inc., Defendants.



122591/02

Judith J. Gische, J.

This is an action for personal injuries allegedly sustained by plaintiff while working at an outdoor commuter train station in Westchester County. Various defendants have moved for partial summary judgment (as more particularly addressed below).

Plaintiff has moved for summary judgment as well but his motion is late, having been brought more than 120 days after he filed the note of issue (e.g. August 5, 2004). Defendant Metro-North, MTA and Granite Halmar have separately moved to strike plaintiff's motion as untimely. The other defendant and third party defendants oppose plaintiff's motion, essentially for the same reason.

After reviewing plaintiff's explanation for why he did not sooner move for summary judgment, the court finds that he has not provided "good cause" for why the court should permit the late motion. Brill v. City of New York, 2 NY3d 648 (2004).

Plaintiff's explanation, that this case became unwieldy because of all the defendants involved, and he was delayed in bringing the motion because of the volume of the record, is not a compelling excuse for lateness. This is hardly a unique situation in the frequently complicated litigation actions that this court (and counsel) regularly encounter. It is certainly not "good cause" for the court to permit such a very late motion for summary judgment, particularly when the scope of plaintiff's motion (liability) is entirely apart from the scope of the other motions before it (indemnification). It is noteworthy that plaintiff filed his note of issue because he believed this case was ready to tried. Judge Evans denied one of the defendant's motion to strike that note of issue. Order, Evans, 10/22/05. Thus, discovery was long ago completed in this case, and the case should proceed to its conclusion at trial.

The court will, however, consider plaintiff's supporting affidavits, and all the opposition papers submitted thereto - only insofar as they address the same issues raised in the two summary judgment motions brought by certain defendants.

Discussion

1.The Parties:

Plaintiff is a welder employed by Manhattan Erectors. He claims to have been injured when the scaffold he was standing on collapsed under him. He has been deposed in this aciton.

Defendant Metro-North Commuter Railroad d/b/a MTA Metro-North Railroad owns, [*2]operates, etc., the railroad station where the incident occurred ("Metro-North"). Carmine Mattioli, a flag conductor on the Harlem Line, and Brian Wahl, an inspector, each appeared at a deposition on behalf of Metro-North.

Defendant Metropolitan Transit Authority ("MTA"), who has been sued along with Metro-North, contends it does not, as plaintiff alleges, own the station at which the accident occurred and that all causes of action and cross claims against it should be dismissed for that reason.

Defendant/Third Party Plaintiff Granite Halmar Halmar Construction Company ("Granite Halmar" or the "contractor") successfully bid on a contract offered by Metro-North Commuter Railroad Company for improvements to the railroad station at Purdy's and the adjacent parking lot. The contract, dated May 8, 2000, and identified as No.9468A for "Upper Harlem Station Improvements," does not expressly have Granite Halmar's[FN1] name on it since it was a solicitation for bid. All sides agree, however, that contract #9468A is the "prime contract", and all of them refer to it in terms of the "Metro-North/Granite Halmar Halmar" contract. Sean Burke, a safety representative for Granite Halmar, testified at a deposition on Granite Halmar's behalf.

Granite Halmar subcontracted with defendant/3rd party defendant Northeast Associates Inc. (September 7, 2000) for them to perform all the structural steel work required under the prime contract. The "Granite Halmar/Northeast" subcontract incorporates by reference the prime contract.

Northeast then subcontracted with third party co-defendant Koenig Iron Works Inc. to perform all the structural steel work it (Northeast) was required to do under the Granite Halmar/Northeast subcontract. The Northeast/Koenig subcontract dated October 28, 2000 consists of a standard form of contract which references the prime contract and identifies it as the "Metro-North Contract 9468A&B Upper Harlem Station and Goldens Bridge Improvement, West Chester [sic] County, NY."

Third party defendant Koenig and third party co-defendant Manhattan Erectors Inc. entered into a subcontract whereby Manhattan Erectors would provide the labor, etc., to install certain iron work at the station. The Koenig/Manhattan contract references "Upper Harlem Improvements KIW Job #00065 Purchase Order." Koenig and Manhattan thereafter executed a separate "indemnity agreement and agreement to maintain certain insurance" dated July 11, 2001.

2.Summarized Contentions:

Plaintiff contends that the defendants were negligent and violated Labor Law §§200, 240(1) and 241(6) because they failed to provide him with a safe work place and/or the proper equipment for him to safely perform his job.

MTA contends it is neither the owner of the station, nor the contractor, and the complaint should be dismissed as to it.

Metro-North and Granite Halmar each contend they did not direct, supervise or control [*3]any of the work at the station, and that they were, therefore, not negligent. They contend Northeast directed, controlled and supervised the project. Alternatively they claim Koenig directed, controlled and supervised the project.

Northeast contends that it was not negligent, but that Koenig was the negligent party. Koenig, in turn, claims Northeast was negligent in its direction, supervision and control of the project. Manhattan Erectors claims that it was not negligent, it did not furnish materials or equipment for the project because it did not own any, and that the issue of who directed, controlled, and supervised the iron workers is a factual one that must be resolved at trial.

3.The Indemnification Provisions in the Contracts

All the defendants and third party defendants have cross claims and counter claims against each other for contribution and indemnification. Only Metro-North, MTA, Granite Halmar and Northeast, however, have motions before the court for summary judgment on their indemnification claims. As a general proposition, all of the non-moving defendants and third party defendants contend that the indemnification issues must wait until the issue of negligence/liability is resolved at trial.

In relevant part, the prime contract between Metro-North and Granite Halmar ("prime contract") provides as follows:

Chapter 6 - Contractor's Liability and Insurance

Article 60.03 - Indemnification A.The Contractor shall indemnify and save harmless the Indemnified Parties, to the fullest extent permitted by law, from loss and liability upon any and all claims and expenses, including, but not limited to, reasonable attorneys' fees, on account of such injuries to persons or such damage to property, irrespective of the actual cause of the accident, irrespective of whether it shall have been due in part to negligence of the Contractor or its Subcontractors or the negligence of the Indemnified Parties, or of any other persons.

* * * C.Except as otherwise provided in Paragraph A. above, the liability of the Contractor under this Article is absolute and is not dependent upon any question of negligence on its part or on the part of its agents, officers, employees or Subcontractors. The approval of Metro-North of the methods of doing the Work, or the failure of Metro-North to call attention to improper or inadequate methods or to require a change in methods or to direct the Contractor to take any particular precautions or to refrain from doing any particular thing shall not excuse the Contractor in the event of injury to persons or damage to property.[*4]

The Granite Halmar/Northeast subcontract agreement identifies Granite Halmar (e.g. Halmar Builders of New York Inc.) as the contractor, and North East as the subcontractor. It also expressly references the prime contract and provides that the subcontractor is bound by all the terms of the prime contract. This agreement includes the following indemnification language:

12. INSURANCE AND INDEMNIFICATION:

The Contractor shall not be liable for any loss or casualty incurred or caused by the Subcontractor. The Subcontractor shall maintain primary and complete insurance on its work until final acceptance of the Prime Contract. The Subcontractor assumes all risk of loss for all of its work regardless of whether the Subcontractor had previously been paid for same. The Contractor is not responsible to provide any protective service for the Subcontractor's benefit, and is not liable for any loss or damage to the Subcontractor's work. The Subcontractor shall hold the Contractor harmless from any and all liability, costs, damages, attorney's fees and expenses from any claims or causes or action of whatsoever nature arising while on or near the Project, or while performing Subcontract related work, including those claims related to its subcontractor, suppliers or employees, or by reason of any claim or dispute of any person or entity for damages from any cause directly or indirectly relating to any action or failure to act by the Subcontractor, its representatives, employees, subcontractors, or suppliers, and whether or not it is alleged that the Contractor, Owner or A/E, in any way contributed to the alleged wrongdoing or is liable due to a non-delegable duty. . .

The Northeast/Koenig subcontract incorporates by reference the prime contract, though the name of the "owner" is not expressly provided on the face of the subcontract. This contract, in relevant part, contains the following language:

4.6 Indemnification [*5]

4.6.1To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner, Contractor, Architect, Architect's consultants, and agents and employees of any 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 Work under this Subcontract, 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 Work 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 sub-contractors, 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. . .

The Koenig/Manhattan contract identifies Koenig as the "contractor" and Manhattan as the "subcontractor." It only references "Upper Harlem Station Improvements KIW Job #00065," but it does not identify by name who the "owner" is. There is a separate agreement regarding indemnification and the obligation to maintain insurance. That indemnification/insurance agreement was executed after the subcontract. The indemnification/insurance agreement provides as follows:

2.Koenig Iron Works Inc. shall be named additional insured on the Subcontractor's insurance policies. This shall be indicated on the certificate of insurance in the description section as follows: "Koenig Iron Works Inc. is named additional insured."

3.Furthermore, to the fullest extent permitted by law, the Subcontractor shall indemnify, defend, and hold harmless and defend, Contractor, Owner and agents and employees, of any of them from and against all claims, damages, losses and expenses, including but not limited to attorneys' fees arising out of or resulting from the work of Subcontractor, provided any such claim, damage, loss or expense (a) is attributable to bodily, injury, sickness, disease or death, or to injury to or destruction of tangible property, including loss or use resulting there from, and (b) is caused in whole or in part by any act or omission of the Subcontractor or anyone directly or indirectly employed or Subcontracted by it, or anyone for whose acts it may be liable pursuant to the [*6]performance of the agreement. Notwithstanding the foregoing, Subcontractor's obligation to indemnify, Contractor, Owner, and agents and employees of any of them for any judgment, mediation or arbitration award or settlement shall extend only to the percentage of negligence of Subcontractor or anyone directly or indirectly employed by it or anyone for whose acts it may be liable in connection to such claim, damage, loss, and expense. In any and all claims against Contractor Owner, or any of its agents or employees, employee of Subcontractor, the indemnification obligation under this paragraph shall not be limited by any limitations of amount or type of damages, compensation or benefits payable by or for Subcontractors under worker's compensation and benefits act or other employee benefit acts.

Discussion

On a motion for summary judgment, it is the movant's burden to set forth evidentiary facts to prove its prima facie case that would entitle it to judgment in its favor, without the need for a trial. CPLR §3212; Winegrad v. NYU Medical Center, 64 NY2d 851 (1985); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Once this burden has been met, the party opposing the motion must then demonstrate, by admissible evidence, the existence of a factual issue requiring a trial of the action, or tender an acceptable excuse for his/her failure so to do so. Id; Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). These disputes must be real, and not just "shadowy semblance" of issues. S.J. Capelin v. Globe, 34 NY2d 338 (1974). Granting the motion is the functional equivalent of a trial, therefore, it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1977). The court's function on these motions is limited to "issue finding," not "issue determination." Sillman v. Twentieth Century Fox Film , 3 NY2d 395 (1957).

The court first addresses Northeast's motion to dismiss plaintiff's labor law and negligence claims because the arguments bring into focus the larger issues regarding which of these defendants (if any) was negligent or "responsible" for the injuries plaintiff claims to have sustained, and the consequent indemnification obligations.

A.Northeast:

1.Labor Law and Negligence Claims

Northeast contends that plaintiff has no cause of action under Labor Law §200 or for common law negligence because it did not exercise supervisory control over the injured plaintiff's work, and that it neither created nor had actual or constructive knowledge of the allegedly dangerous condition. DeBlase v. Herbert Construction Company, Inc., 5 AD3d 521 (2nd Dep't 2004). This record, however, reveals there are numerous factual disputes about what its principal, and owner, Frank Steffe did, who he did it for, and whether it was general [*7]supervision or something more.

Mr. Steffe wears two hats in this case. He is not only the principal of Northeast, he was also reportedly "hired" by Koenig as its project manager. Mr. Steffe admits he supervised the ironworkers at the project site, but claims he contends he did so for Koenig in his capacity as project manager, not for Northeast.

The Granite Halmar/Northeast subcontract obligates Northeast to supervise the ironwork at the site, and Mr. Steffe concedes this point, but contends, once again, that any supervision of the project he did was for Koenig, rather than on behalf of the company he owns. While Mr. Steffe also admits he hauled materials for the project in his Northeast van, he maintains he did so for Koenig as its project manager, not on Northeast's behalf.

Mr. Steffe was at the job site every day, and he had daily contact with Granite Halmar and Metro-North personnel who were also present at the site. Plaintiff contends that Mr. Steffe gave him his job assignments, supervised his work, and that it was clear he was supervising the ironworks project overall. Plaintiff contends that Mr. Steffe directed him on how to perform his work. Some of these claims are corroborated by the testimony of others who observed how Mr. Steffe conducted himself at the site, and (to some extent) by Mr. Steffe himself.

Labor Law § 200 mandates that all workplaces be equipped, operated and conducted so as to provide reasonable and adequate protection to the workers employed there. Liability, however, can only be imposed if the party so charged was negligent. Thus, if the defendant cannot be held liable, unless it knew or should have known of the condition or work practice at issue, and it had the ability and authority to correct it. Rizzutto v. L.A. Wenger Contracting Co. Inc., 91 NY2d 343 (1998); DeBlase v. Herbert Construction Company, Inc., supra.

Northeast has not shown, as a matter of law, that it did not exercise supervisory control over the injured plaintiff's work and that it neither created nor had actual or constructive knowledge of the allegedly dangerous condition. Mr. Steffe's testimony and the rest of this record, frame factual disputes that must be resolved at a trial. Under these circumstances, and for these reasons, Northeast's motion for summary judgment, dismissing plaintiff's Labor Law §200 and negligence claims must be denied.

2.Contractual Indemnification:

Northeast argues that it is entitled to summary judgment on its contractual and common law indemnification cross claims against Koenig because Koenig directed, supervised and controlled plaintiff's work and plaintiff's injuries were due to Koenig's negligent acts or omissions. As discussed above, the relevant section of the Northeast/Koenig indemnification/insurance agreement, requires Koenig to indemnify Northeast if Koenig, its sub-contractors, or anyone directly or indirectly employed by Koenig is negligent. The issue of negligence has yet to be determined. Therefore, Northeast's motion for summary judgment on its contractual and common law indemnification cross claims is premature and it must be denied.

The court does not reach the issues raised and legal arguments promoted by Koenig, that the Northeast/Koenig indemnification provision is unenforceable upon application of General Obligations Law § 5-322.1 for the same reasons. See: Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786 (1997); Pardo v. Bialystoker Center & Bikur Cholim, 10 AD3d 298 (1st Dep't 2004); McDermott v. City of New York, 50 NY2d 211 1980; Correia v. Professional Data Management, 259 AD2d 60 (1st dept. 1999). [*8]

B.MTA's motion for summary judgment:

MTA contends that it is not an owner, that it neither supervised nor controlled the work site and that it is not the contractor on the prime contract. As a consequence it claims that the complaint against it should be dismissed. Examining the prime contract reveals that "MTA Metro-North is an agency of MTA." MTA is one of the indemnified parties in the prime contract. MTA has failed to prove, through any evidence, not alone admissible evidence, that it is not an "owner", requiring that the case against it should be dismissed. An attorney's affirmation on this point is just not probative. Brophy v. Brophy, 259 AD2d 443 (1st dept. 1999). Therefore, MTA's motion for summary judgment dismissing the complaint and cross claims against it is denied.

C.Metro North and Granite Halmar:

Metro-North, MTA and Granite Halmar jointly and individually claim that they are entitled to contractual indemnification from Northeast, Koenig and Manhattan Erectors because of the indemnification clauses in those subcontracts. Alternatively, they seek summary judgment on their common law indemnification cause of action against these subcontractors. Metro-North and Granite Halmar maintain that the undisputed facts show that they did not 'actively' direct, supervise, or control the work performed at job site, therefore they were not negligent. Thus, they claim that Northeast and/or any of the other subcontractors were negligent, and that whether under the provisions of their particular agreements (e.g. subcontracts) or at common law, Northeast, Koenig and Manhattan Erectors must indemnify Metro-North and Granite Halmar - if plaintiff prevails.

An owner/general contractor may seek common law indemnification from the contractor found at fault, if that owner/general contractor was itself not negligent, but only vicariously liable. Gomez v. National Center for Disability Services, Inc., 306 AD2d 103 (1st Dep't 2003); GOL 5-322.1. Similarly, contractual indemnification does not lie where the owner or contractor supervised or controlled the work site or where its own negligence contributed to the harm. Amato v Rock-McGraw, Inc., 297 AD2d 217 (1st Dep't 2002); See also De La Rosa v Philip Morris Mgt. Corp., 303 AD2d 190 (1st Dep't 2003); Correia v Professional Data Mgt., 259 AD2d 60 (1st Dep't 1999).

This record frames numerous factual disputes about who was supervising plaintiff (if at all) and why the accident alleged happened. It is disputed which of these defendants or third party defendants 'actively' directed, controlled and supervised the work being performed. Evidently each of these defendants/3rd party defendant had personnel present at one point or another at the work site, and to some greater or lesser extent were involved with the intricacies of the work being performed.

Metro-North's and Granite Halmar's own physical presence at, and involvement with, the work site raise triable issues of fact about whether these defendants exercised only general supervision, as they contend, or actually directed, supervised and controlled the work being done. For example, a Metro North flag conductor was present at the site when plaintiff was injured. Mr. Mattioli, the flag conductor, testified that he regularly met with contractors at the site, and that Metro-North workers conducted safety inspections.

Metro-North's capital engineer (Mr. Wahl) testified at his deposition that progress meetings were regularly held at Metro-North and that the procedures, means and methods used [*9]by contractors on projects would be addressed at those meetings. Mr. Wahl personally provided safety instructions to the contractors and subcontractors on projects, including those at Purdy's. He prepared daily reports about and he testified he had "a little bit of input" on the work that needed to done at any particular station on any given day.

Mr. Burke testified on behalf of Granite Halmar that Metro-North regularly inspected the job site. Granite Halmar, on the other hand, itself also had a daily presence at the work site through its project manager, Mr. Marras, who worked there. Mr. Burke also testified that Granite Halmar had no set rules for the storage of scaffolds at the Purdy's station, but that Granite Halmar had the authority to stop work if they observed an unsafe condition at the work site.

This testimony presents a material, triable issue of fact about the nature and extent of Metro North and Granite Halmar's activities at the site and whether their acts constituted only "general supervision" or something more. These disputed facts can only be resolved by the trier of fact at a trial.

The Granite Halmar/Northeast, Northeast/Koenig and Koenig/Manhattan agreements each have an indemnification provisions that are triggered by the negligence ("arising out of or resulting from") of the subcontractor. Since the issue of the subcontractor's negligence remains unresolved, Metro-North and Granite Halmar's motion for contractual indemnification is premature. Amato v Rock-McGraw, Inc., supra.; See also De La Rosa v Philip Morris Mgt. Corp., supra.; Correia v. Professional Data Mgt., supra. This is also true of their motion for summary judgment on their common law indemnification claims. Gomez v. National Center for Disability Services, Inc., supra.; GOL §5-322.1.

1.Metro North and Granite's cross claim against Manhattan Erectors:

Metro-North and Granite Halmar have also failed to prove their case, that they are entitled to indemnification under the Koenig/Manhattan Erectors subcontract. None of these three defendants are clearly identified by name either as parties or indemnitees. Thus, Metro-North, MTA and Granite Halmar will need to prove their claims vis-a-vis Manhattan Erectors at trial.

D.Northeast's Insurance Obligation:

Metro-North and Granite Halmar both contend that Northeast was required to procure liability insurance, and that it failed to do so. As a result, they contend that it they are entitled to summary judgment on the issue of whether Northeast is liable to them for any damages associated with its failure to acquire such insurance.

Pursuant to their agreement, Northeast must "maintain primary and complete insurance on its work until final acceptance of the Prime Contract . . ." and "the Subcontractor shall obtain, before commencing work, primary and complete insurance coverage as may be specified in the Prime Contract or elsewhere in this Subcontract. . ."

The Granite Halmar/ Northeast contract further provides that the insurance is at Northeast's expenses and that the following be indemnitees thereunder: Halmar Builders of New York Inc., Metro-North, MTA, as well as other entities not named (e.g. not parties) in the case at bar.

Finally, the contract provides that the "Subcontractor shall not sublet any part of this Subcontract without assuming responsibility for requiring similar insurance from its subcontractors and suppliers . . ." Failure to maintain the specified insurance is a "material [*10]breach" of the contract.

Northeast's argument, that the prime contract does not specify the insurance a subcontractor must maintain, therefore it is not in breach of its agreement with Granite Halmar, is misleading and incorrect.

The Granite Halmar/Northeast agreement expressly incorporates the prime contract by reference. Article 6 of the prime contract provides a detailed description of all the insurance the contractor (e.g. Granite Halmar) must maintain. As a term and condition of the Granite Halmar/Northeast contract, the "Subcontractor is bound, responsible, obligated and liable to the Contractor as the Contractor is bound, responsible, obligated and liable to the Owner under the Prime Contract, both with respect to the work required herein as well as with respect to the terms, conditions and other contractual rights and obligations under the Prime Contract." Moreover, "the Prime Contract and this Subcontract shall be interpreted together and in harmony."

The court finds that Northeast is legally bound to procure insurance comparable to that which is identified in the prime contract. Northeast, in its agreement with Granite, expressly undertook to satisfy the indemnity and insurance procurement obligations set forth in the prime contract. Compare: Bussanich v. 310 East 55th Street Tenants, 282 AD2d 243 (1st Dep't 2001); and Gemma v. First Fidelity, 1 AD3d 152 (1st Dep't 2003).

Having established their prima facie case against Northeast, Granite Halmar would need to prove it procured insurance. It provides no proof that it did, only its argument that it did not have to. Since there is no triable issue of fact, Granite Halmar and Metro-North are entitled to summary judgment on their Sixth Cross Claim against Northeast for breach of contract on the issue of liability only.

Granite Halmar and Metro-North are entitled to recover the damages caused by Northeast's breach. Inchaustegui v. 666 5th Avenue L.P., 96 NY2d 111 (2001). The actual amount of damages, however, must be addressed at trial. Northeast's legal argument, that Granite Halmar and Metro-North are limited to their contract damages, rather than full indemnification, is beyond the scope of the summary judgment motion before the Court, as framed by Granite Halmar and Metro-North, which concerned issues of liability only. Consequently this issue is denied without prejudice to raise it at trial.

Conclusion

It is hereby

Ordered, that Defendant MTA's motion for summary judgment, dismissing the complaint and all cross claims against it, is denied; and it is further

Ordered, that Defendant Metro-North and Defendant/ 3rd Party Defendant Granite Halmar's motion for summary judgment on its contractual indemnification causes of action against Defendant/3rd Party Defendant Northeast Associates, and 3rd Party Defendants Koenig Iron Works and Manhattan Erectors, is denied; and it is further

Ordered, that Defendant Metro-North and Defendant/ 3rd Party Defendant Granite Halmar's motion for summary judgment on its common law indemnification causes of action against Defendant/3rd Party Defendant Northeast Associates, and 3rd Party Defendants Koenig Iron Works and Manhattan Erectors, is denied; and it is further

Ordered, that Defendant/3rd Party Defendant Northeast Associates' motion for summary [*11]judgment dismissing plaintiff's common law negligence cause of action and cause of action under Labor Law §200 is denied, because they have failed to prove their prima facie case; and it is further

Ordered, that Defendant/3rd Party Defendant Northeast Associates' motion for summary judgment on their common law and contractual indemnification cross-claims against Defendant/3rd Party Defendant Koenig Iron Works is also denied, for the reasons provided herein; and it is further

Ordered, that Defendants Metro-North and Granite Halmar's motion for summary judgment on their Sixth Cross Claim against Defendant/3rd Party Defendant Northeast Associates for breach of contract is granted as to liability only, for the reasons set forth herein; and it is further

Ordered, that Defendants Metro-North and Granite Halmar's claim for damages caused by Northeast's breach is reserved for trial so that the amount and measure of damages can be decided; and it is further

Ordered, that the court has decided plaintiff has not shown 'good cause' for why his late motion for partial summary judgment should be permitted, and permission for him to so move is hereby denied; and it is further

ORDERED, that Metro North, MTA and Granite Halmar's motion to strike plaintiff's motion for summary judgment is hereby granted; and it is further

Ordered, that this case is restored to its rightfully date on the trial calendar since the Note of Issue has already been filed; and it is further

Ordered, that any relief not expressly addressed in the body of this decision/order has nonetheless been considered and is hereby denied.

This shall constitute the decision and order of the court.

Dated:New York, New York

March 18, 2005

So Ordered:

__________________

J.S.C. Footnotes

Footnote 1:"Granite Halmar Halmar" was known as "Halmar Builders of New York Inc." at that time. None of the parties (particularly Granite Halmar Halmar) raises any claim that this change has any legal ramifications in this case. Consequently, the court accepts that the companies are for purposes of this motion, one and the same.