Contino v 340 Madison Owner LLC

Annotate this Case

Download PDF

Contino v 340 Madison Owner LLC 2012 NY Slip Op 30817(U) March 28, 2012 Supreme Court, New York County Docket Number: 116392/07 Judge: Paul Wooten 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. lNED ON41212012 [* 1] - NEW YQRK COUNTY PART 7,,, Plaintiffs, IrMeX 4 I h9t b 340 MADISON OWNER LLa and JVI~GRAW HUDSON CONSTRUCTION CORPQRATIQN, ,~ 'n I 16392107 ' Seq. No. 002 I t 340 IVI CGRAW'H'UPSQN CONS Defe nda ntslT hird-Pa rty Pla I r)t Iffs , -h$tiiriSt- 1 /I_ Third-Paytv Index No. 59 0336108 I I SAGE ELECTRICAL CONTRACTING, The following papers numbered 1 to 3 were read on this mo svmmary jdogment dlkrrtis4ing the third-party counterciairll, .~~ I Notice of Motipnl Order to ,$how Cause - Aftldavits - Exhibits ... h )( \.' Answering Affidavit$ Reply Affidavits Cross-Motion: - Exhibits (Memo) 1 Yes 7 No ' 1 - Exhibits (Memo) I 3 In this action which arises from an accident at a construction site, third-party defendant Sage Electrical Contracting (Sage) moves, pursuant to CPLR 3212 and Workers' Compensation Law 5 11, for summary judgment dismissing the third-party complaint and granting Sage summary judgment on its counterclaim for contribution or common-law indemnification. Page 1 of 7 [* 2] -' .. I . r !. ' ' I , . 8 /, , , ' , Q ,, jarr then an employee of r4, 2 Sage, slipped and jell on a slick Qf grease/oil and water at thQ base qf a st;rirGase in the premises loqated at 349 Madi$oy, Avenue in Mqnhattae. DQfendqnt 340 Madison Owner LLG i g q , and defendant MtGraw Hudson Construction Corporation (340 Madison) (McGraw Hudson) wqs t subcolltractoa hired by dson to perform electrical work at the site. Plaintiff was aware of the ked past it several tifhes prior to the accideht. "h4cGraw Hudson's lab ' 3 I cgntractor for the construction prQject Sage was a far @ping the work site clean. In December 2007, plaintiff Gommenced this action against 340 Madison and McGraw Hudson, The complaint I gn, the first tw9 sounding - , and ,violstions of Labor Law $5 20Q, 240(1) and 241(6). The third cause of actio0 f w loss nf con7ortium is asserted by tino's wife. On April 29, 2008, 340 Madison and McGrgw Hudson plaintiff qandra Co commenced thg thirdiparty actiot) against Sqge. The third pqrty oomplaint asserts four causes w and contraqtual indemnification, and breach of contract ntribytion, corn for failure to7procure insurance -In its third-party answer, Sage asserts a counterclaim for contribution or common-law indemqification. I L - . -,. , ,I , .. ' - 1 . . 7 . . SUMMNRY JUDGMENT STANDbRb I ,. L J I Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v Porneroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must make a prima facie shawing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating t h e absence of 9851; material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 853 [I . . v-- ............................ ,.... .......... ..~. ,. . , -I ., . . , . ............. CPLR 3212 [b]). The failure to make such a showing requires denial of th'e'motion, regardless Page 2 of 7 [* 3] apers (see Smalls v AJ/ us., /nc , I O NY3U 733, 735 J ie shobing has been mads, hgwevsr, "the burd uce evide'ntiary proof in admissible forrp sufficient to establish the existence of material issue? sf fact that require a trial for resolution" (Giuffrida v %/tibank Corp.,IOO NY2d 72, 81 [2003]; sQe also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CPLR 3212 [b]). When detidiyg a gummary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v Twentieth Film Gorp., 3 NY2d 395, 404 [Ig$f]). The Cqurt view$ the evidence in the light most favorgble to the nonmoving party, and gives the nonmoving party the benefit of all fere an $e drawn evidence (see Negri v StoR 4 Shpp, lnc., NY2d 625, 626 [1985]). If there is any doubt as to the existence of a triable issue, summary judgtnent should be denied (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 2'31 i.19781). DISCUSSION Admissibility of Sage's Evidence As a threshold matter, 340 Madison and McGraw Hudson argue that Sage's motion for summary judgment must be denied because Sage failed to submit evidence in admissible form for the Court to consider its application. Sage bases its summary judgment motion in large part on the deposition testimonies of plaintiff, Robert Avitabile (McGraw Hudson's superintendent), Richard Conti (McGraw Hudson's labor foreman), and Carlo Pannone (Sage's superintendent). 340 Madison and McGraw Hudson argue that these deposition transcripts, while certified, are unsigned and unsworn, and thus, cannot be considered admissible evidence, and in support $0 .cite to Lo Cicero v Frisian (I AD2d 761 [2d Dept 19891 [unsigned and unsworn transcripts of examinations before trial inadmissible]). However, more recent Appellate Division, Second .. . . . . " . " ~ ~ .. .. . .".. .. . ........ .. . . . . , . Department, case law state$ that "the transcript of '[the] examination before trial was certified Page 3 of 7 [* 4] 1 *. 1 afid, hence, in a i61a form" ( F e l b r b a u I / More frpqp-it sjatemerrts of the law We'inberger,'40 dl&e that unsign tranScript5 can be qdmissible if the defen'dailt forwarded the dep 8'08, 869 [2d bept 20077) worn deposition ts th& deponent for I cpnsideration and r p w w , but the depongnt failed to sign or rsturn it withtn 60 days (see CPLR 31 16 [a]; see e g. Frakese v Tanger Factow Outlet Ctrs., lnc,, 88 AD3d 763, 763-764 [2d Qgpt 701 I]; Newell Co. v Rice, 236 AD2d 843, 844 [4th Dept 1 9 9 f ] ) ,or that "[ale unsigned but R.M. oertifrdd deposition \fanscript of party can be used by the bpposing party $5 an admission in 1 sljpport of a Summary judgment rnQfion" '(Morchik v Trinity Schod, 257 AD2d 534, 536 [ l s t dded]; see also .M, Newell Co. v ce, 236 AD2d at 844), The facts of this matter dd not fall within any of these situations. Here, Sage uses gned, ,but c;lertified depositisv .transcript$ as B basig for it? summary judgment motion, and fails to give any indication that its use of the transcripts falls within CPLR 31 16(a). Hdwever, 340 Madisbn and McGraw Hudson, while attacking Sage's use of them, use these Same trqnscriptq as a basis for their oppo$ition. This situation falls more within the context of Morchih (257 AD2d at 535), where the Court found that, "[plaintiff's] transcript here, though unsigned, had been certified by the c w r t reporter. Moreover, plaintiff himself used portions of it in his opposition paper's. We find that the court erred in denying the motion on these grounds . . . ." The Court finds that the deposition transcripts used by Sage in its summary judgment motion are admisqible and will therefore consider Sage's motion, Sage's Motion Workers' Compensation Law 9 11 "Workers' Compensatbn Law 5 11 prohibits a third-party action for common-law indemnification or contribution against an employer except in the case where, inter alia, the employee has sustained a grave injury" (Cocom-Tambriz v Surita Demolition C o n k , Inc., 84 --- - . - - . AD3d 1300, 1301 [2d Dept 201 I]) The definition of "grave injury" is set by statute, and only Page4of 7 7 [* 5] - - those conditions listdd, constitute a grdve injury (see Fleming v GrahdN, 10 NY3d 296, 300 r 9 [2008] r the list, both exhaustive and not illustrative, 15 oot intended to be extended absent * _ further legislqtive actibn (Qovernor s Approval Mem at 55) l) It is undisputed that on the date of the accident, plaintiff was Qmplgyed by Sage and that he did not Sustain a grave injury. Therefore, the portion of Sage s motion which seeks summary judgment dismissing 340 Madison and McGraw Hudson s contribution and cornmon law indemnification claims is granted. C prlt ta c t ua II ndem nifica t i o n I 1 [A] paby is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding fact? and circums,tanws (Bail/wg,ew v Kings County Waterproofing Corp., 91 AD3d 686, 688 [Zd Dept 201 21, quoting Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [ I 9871). [A] party seeking contractual indemnification must prove itself free from negligehte, because to the extent its negligence contr ibuted to the accident, it cannQt be indemnified therefar (Baillargeon, 91 AD3d at 688 [ipternal quotation marks and citations omitted]). If a triable issue df fact exists regarding the indemnitee s negligence, summary judgment on a claim fgr contractual indemnification must be denied as premature (see _..* . Bai//argeon,91 AD3d at 688). 340 Madison and McGraw Hudson contend that paragraphs 7(a) and (c) of the March 15, 2004 McGraw Hudson/Sage Trade Contract entitle them to be indemnified by Sage if they are found liable to plaintiff in this action. Paragraph 7(a) provides indemnification against all penalties for violation of Sage s covenants and warrants that it [would] perform the work in a safe and proper manner and so as to comply with all laws, rules, regulations, codes and ordinances referring to such work Since there is no evidence that Sage failed to perform its work in a safe and proper manner, or that it fahed to comply with any laws or rules, regulations, Page 5 of 7 [* 6] raph 7 ( c ) &quires inddmnificatio? if 340 Madison and McGrdw Hudson are found n$ other than employees liable for dayages for bodily inj,pries sustai 1 1 on the date of the phasis added), Since, as it h accident plaihtiff was an employeg of Sage, no contractual itldemnification based on ttys e. Therefore, t,he portion of Ggge s motion which sgeks summary judgment Madison and McGraw Hudson s claim for contractuql indemnification is granted. s i Contract fo ailure to OPtaih Insurance The parties do not discuss this cause of action in their motion papers. Thus, Sage has s burden on its surnqgry ju failed to seeks summary judgment dismissing this claim is denidd L $igd s Count&claim for Commoe-Law Indemnification br Contribution , t lndetnnity involves an attempt to shift the entire 105s from one who is compelled to pay for a loss, without regard to his own fault, tg another party who should more properly bear responsibility for that loss because it was the actual wrongdoer <(Trump Vi/. Section 3 v New York State Hous. Fin. Agency, 307 AD2d 891, 895 [ I s t Dept 20031, quoting Trustees of Colurnbra c/n)v. v Mitchell/Giurgola Assoc I 0 9 AD2d 449, 451 [ I st Dept 1985l). t ? Hdwever, the Court has already concluded, that there is no evidence in the record to indicate that Sage had anything to do with creating the greaselwater hazard, that it had any obligation to clean the area where plaintiff fell and failed to do so, or that it acted negligently in any way such that it would be held liable, In light of the Court granting Sage s motion for summary judgment dismissing the third-party complaint against it, except as to the fourth cause of action for breach of contract, Sage is not entitled to any common-law relief as against 340 ..~. . . -- .- , - I - . .. . . , . .. . . . .. . . . - , I - -. , . - Madison and McGraw Hudson. Accordingly; the portion of-SagQ smotion seeking summary Page 6 of 7 [* 7] son for common-law . or cOntribution is de 1 I CQNCLUSION g's hotion which seeks summary jydgment dismissing 340 Madison Owner LLC And McGraw HudSon Construction Corporatian's n, common4aw and I$imstis granted; and it is futther motion which seeks summary son Construction Corporation'$ breach of contract claim is denied; and it ISfurth Tption which seeks surpmary counterclaim against 340 Madison Owney'LLC and McGraw Hudson Con'struction Corporatiorl for Contribution or commQn-law indemnification is denied as moot, ERED that trial cpuh are directed to ap reet, Room 341 on 10:2012 r a pre-trial conference in Part 7, at 2:aO P:M;; and it is further, 1 ERED that Sag notice of eptry upon $11 patti ~ L .. . . judgment accordingly This constitutes t h e Order o Enter: PAUL WOOTEN 1 NkW YOHK U)IJNN CLERK'S OFFICE Page7of 7 J.S.C. I

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.