Weber v Baccarat, Inc.

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Weber v Baccarat, Inc. 2012 NY Slip Op 30687(U) March 16, 2012 Supreme Court, New York County Docket Number: 120164/2002 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 312112012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY . - r 2 - - - -. - , - 3 m i PRFGFNT. Index Number : 120164/2002 WEBER, ARTHUR PART - ,Y INDEX NO. vs BACCARAT MOTION DATE Sequence Number : 014 MOTION SEQ. NO. MODIFY ORDEWJUDGMENT MOTION CAI.. NO. The following papers, numbered 1 to were read on this motion tolfor PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhibits Replying Affidavits Cross-Motion: 0 Yes 6. No Upon the foregoing papers, it is ordered that this motion ;L &ei&P Dated: i ~ 1 ~COJVEC~LVZU 119 ra, Check one: 0 FINAL DISPOSITION @ NON-FINAL D I ~ O S I T I O N Check if appropriate: fl DO NOT POST c REFERENCE ] 0 SUBMIT ORDER/ JUDG. 0 SETTLE ORDER/ JUDG. [* 2] Plaintiffs, Index No.: 120164/2002 Submission Date: 11/30/11 -against- DECISION Baccarat, Inc., Baccarat Real Estate, Inc., 625 Madison Avenue Associates, ID1 Construction Company, Inc., Related Management Corp. and King Freeze Mechanical Corp., Third-party Plaintiff, -againstCool Wind Ventilation C o p , Second Third-party Plaintiff, 1 . " [* 3] Baccarat, Inc. and Baccarat Real Estate, Inc., Third Third-party Plaintiffs, -against- York Ladder Inc., Werner Ladder, Inc. and Werner Co., For Plaintiffs: Sheindlin & Sullivan, LLP 350 Broadway, 10IhFloor New York,NY 10013 . For Defendants Baccarat, Inc.: Leahay & Johnson, P.C. 120 Wall Street, Suite 2220 New Y r , NY 10005 ok For Defendant ID1 Construction Corp: L Abbate, Balkan, Colvita & Contini, L.L.P. IO01 Franklin Avenue, 31dFloor . Garden City, NY 11530 Papers considered i review of this cross motion to renew: n Notice of Motion . . . . . . . . . . . . .1 Aff in Support. . . . . . . . . . . . . . - 2 AffinOpp . . . . . . . . . . . . . . . . . .3 AffinOpp.. . . . . . . . . . . . . . . . . 4 Reply Aff .................. 5 . WON. SALIANN SCARPULLA, 5.: Baccarat, Inc. ( Baccarat ) moves, pursuant to CPLR 222 1, for renewal of the portion of the Court s July 25,2008 order (Justice E. Lehner) (the July 2008 Order ) which severed the action against ID1 Construction Company, Inc. ( IDI ). Baccarat premises its motion on the February 17,2011 order of Hon. Sean Lane, United States Bankruptcy Court, Southern District of New York (the Bankruptcy Court Order ) in the action entitled In Re IDI Construction Company, Inc., case number 17881/04 (the [* 4] Bankruptcy Action ). Baccarat seeks, upon renewal, to rejoin ID1 as a party defendant, to be permitted to pursue its claims against ID1 to the extent of IDI s insurance coverage, and for summary judgment on its cross claims against ID1 for contractual and common- law indemnity to the extent of IDI s insurance coverage. Parties and Procedural Background The underlying facts have been set forth in greater detail in the Court s orders dated Januasy 18, 20 1 1 (the January 201 1 Order ) and October 13,2011 (the October 201 1 Order ) and, therefore, will not be repeated at length here. On December 23,2000, plaintiff Arthur Weber ( Weber ) was injured in a fall from an A-frame ladder while installing abeating, ventilation and air conditioning ( WAC ) system in a ceiling in a building located at 625 Madison Avenue, New York, New York (the building ). Baccarat occupied the basement, ground and second floors (the premises ) of the building, and it entered into a contract (the contract ) with ID1 as construction manager for renovation (the project ). ID1 entered into a subcontract with King Freeze Mechanical Corp. ( King Freeze ) for W A C work on the project. In 2004, ID1 commenced the Bankruptcy Action and, in July 2008, the Court (Justice Lehner) granted plaintiff summary judgment on liability on his Labor Law 5 240 (1) claim against Baccarat and 625 Madison Avenue Associates ( 625 Madison ), denied summary judgment against King Freeze and severed the action against IDI, due to the pendency of the Bankruptcy Action. In 2010, the Appellate Division, First Department [* 5] affirmed the grant of summary judgment against Baccarat and 625 Madison, affirmed the severance of the action against IDI, due to the pendency of the Bankruptcy Action and modified the order to grant plaintiff summary judgment on liability on his Labor Law 6 240 (1) claim against King Freeze, holding that King Freeze was a statutory agent of IDI. Weber v Baccarat, 70 A.D.3d 487 (1st Dep t 2010). In January 20 11, I denied Baccarat, 625 Madison and Related Management, L.P. ( Related ) summary judgment on contractual and common-law indemnity against King Freeze, because there was no determination of negligence and the liability finding was statutory. On February 17,201 1, the Bankruptcy Court lifted the stay to permit Baccaratto prosecute this action to the extent of insurance coverage only. The Bankruptcy Court . further held that that there was no prohibition on a party suing a debtor for the limited purpose of recovering against a debtor s insurance carrier. Renewal CPLR 2221 ( e )provides that a motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination * . , [and] reasonable justification for the failure to present such facts. The Bankruptcy Court Order, which permitted Baccarat to proceed, was issued three years after the July 2008 Order and, hence, is a new fact that could not have been previously presented. 4 [* 6] ID1 argues opposed Baccarat s motion, arguing that it is seeking to renew a motion made by a different party. ID1 further argues that if it Baccarat is allowed to bring ID1 back into the action, ID1 that should have the opportunity to complete discovery, retain experts, strike the note of issue stricken and refile its motion for summary judgment. However, it has not identified any specific discovery needed, aside from retaining expert witnesses, which it may do pursuant to CPLR 3 101 (d). Baccarat has stated that it is willing to provide access to the entire non-privileged file to [IDI s]counsel for copying of any document not in [IDI s] files, at IDI s cost. In light of the extensive discovery already completed in this action, and the fact that the accident occurred more than eleven years ago, the Court declines to strike this case from the calendar. I will, however, order Baccarat to provide IDI s counsel access to Baccarat s entire non-privileged file, for copying, at IDI s expense, of any documents not already within IDI s files, within 30 days after service of an order settled upon this decision. ID1 also asserts that only the claims by Baccarat should be reinstated against it. However, the Bankruptcy Court Order held that there was no prohibition on a party Baccarat is, in fact, seeking to renew plaintiffs motion dated December 20,2007, pertaining to the portion which resulted in the order severing ID1 from this action. Plaintiffs, in an attorney affirmation styled in opposition state that they do not oppose Baccarat s motion, but rather they oppose the relief requested by IDI, specifically striking the note of issue. [* 7] suing the Debtor only for the purpose of recovering against the Debtor s insurance carrier. The new fact of the Bankruptcy Court Order warrants granting renewal and, upon renewal, permitting rejoinder of the action against ID1 and permitting prosecution of the action against IDI, to the eMent of IDI s insurance coverage. Contractual Provisions The Contract contains an indemnification provision, Article 3 :18, (the Indemnification Provision ) which provides: To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner . . * from and against claims, damages, losses and expenses including but no# limited to attorneys fees arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily 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, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. I The Contract also has a provision, Article 3.3, regarding supervision (the Supervision Provision ) which provides: The Contractor shall 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. 6 [* 8] Contractual Indemnity The right to contractual indemnification depends upon the specific language of the contract. Lesisz v. Salvation Army, 40 A.D.3d 1050, 1051 (2d Dept 2007) (quoting Kader v. Ct 0fN.Y. How. iy Preserv. & Dev., 16 A.D.3d 461,463 (2005). Moreover, a contract assuming [the duty to indemnify] ,.. must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed. Hooper Assoc. v. AGS I Computers, 74 N.Y.2d 487,491 (1989). A party s right to contractual indemnity I depends on the intent of the parties and the manner in which that intent is expressed in the contract. Smzo v. Maple Ridge Assoc.,L.L.C., 85 A.D.3d 459,460 (1st Dep t 201 1). Reading the Indemnification Provision according to the plain meaning of its terms, Greenfield v, Philles Records, 98 N.Y.2d 562, 569 (2002), it limits indemnification to negligent acts or omissions by the Contractor, a subcontractor or anyone employed by them. There has been no finding of negligence against ID1 or any other party. Rather, liability against Baccarat, 625 Madison and King Freeze was based upon their status as an owner or a statutory agent under Labor Law 8 240 (1). In essence, the Indemnification Provision follows common-law indemnity. Common-Law Indemnity Generally, common-law indemnity is a restitution concept which permits shifting the loss from a party held liable by virtue of its status to a party at fault. Mas v. Two Bridges ASSOC., N.Y.2d 680,690 (1990). Merely having the authority to direct, control 75 [* 9] or supervise the work is not consistent with the equitable purpose underlying common- law indemnification . , . [but, rather) the obligation to indemnify [is] on parties who were actively at fault in bringing about the injury. McCarthy v. Turner Constr., h c . , 17 N.Y.3d 349,374,377 (201 1). Baccarat contends that ID1 inadequately supervised plaintiffs work, breached its duty under the Supervision Provision and failed to properly inspect the ladder and that these failures amount to negligent conduct. However, generally, summary judgment is inappropriate in negligence cases, because whether a party acted reasonably under the circumstances is usually a question of fact. Ugarriza v. Schmeider, 46 N.Y.2d 471,475476 (1979); Andre v Pomeroy, 35 N.Y.2d 361,364 (1974). In this case, there has been no determination of negligence against any party. Moreover, in the October 201 1 Order, I determined that there is an issue as to whether responsibility for the ladder s condition lies with its manufacturer or distributor. In the January 201 1 Order, I denied the motion by Baccarat, 625 Madison and Related for summary judgment on contractual indemnity under a similar contractual provision and on common-law indemnity against King Freeze, IDI s statutory agent. [* 10] Therefore, the portion of Baccarat s motion that seeks summary judgment on Settle order. Dated: New York, New York Marchlk, 2012 ENTER: .. . . 9

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