Formica v Byron Jackson Pumps

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Formica v Byron Jackson Pumps 2012 NY Slip Op 31570(U) June 1, 2012 Supreme Court, New York County Docket Number: 190309/10 Judge: Sherry Klein Heitler 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 611412012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY r PART 30 INDEX NO. PRESENT: HON. SHERRY KLEIN HEITLER 190 309!/0 Justlce .- . Index Number : 190309/2010 FORMICA, GAETANO vs. BYRON JACKSON PUMPS SEQUENCE NUMBER : 001 - MOTION DATE MOTION SEQ. NO. DISMISS 0 - The following papem, numbered Ito -, were read on thls rnotlon to/for Notice of MotlonlOrder to Show Cause - Affidavits - Exhlblts Answerlng Affldavlts - Exhlblta Replying Affldavita Upon the foregolng papem, It Is ordered that thls motlon is is decided. ixr a.ccordLzcc with the memorandum decision dated 6. / . 1 FILED NEW YORK COUNTY CLERK'S OFFICE Dated: I. CHECK ONE: 6.1 L L - blob!. SHERRY KLEIN HEITLER .....................................................................[7 CASE DISPOSED 2. CHECK AS APPROPRWTE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ GRANTED 17DENIED J.S.C. 0 NON-FINAL DISPOSITION GRANTED IN PART 0OTHER SUBMIT ORDER 0SETTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 30 __ _l_______--_-_-_____________I_______ X Index No. 190309/10 Motion Seq. No. 001 GAETANO FORMICA and GIUSEPPA FORMICA, Plaintiffs, -againstBYRON JACKSON PUMPS., et al., Defendants. X Index No. 590915/11 THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Plaintiff, -against- DECISION AND ORDER ADT SECURITY SERVICES, INC. FILED SHERRY KLEIN HEITLER, J.: NEW YORK CLEBf@FFIC~ Third-party defendant ADT Security Services, Inc. ( ADT ) pursuant to moves 321 l(a)(7) to dismiss third-party plaintiff The Port Authority of New York and New Jersey s ( Port Authority ) complaint in this action for failure to state a cause of action. The Port Authority opposes ADT s motion and cross-moves pursuant to CPLR 3025(b) for leave to amend andor supplement the third-party complaint. For the reasons set forth below, ADT s motion to dismiss is denied in its entirety and the Port Authority s motion to amend the pleadings is denied as moot. -1- [* 3] i c U GROUND On October 6,2010, Plaintiffs Gaetano Formica and Giuseppa Formica commenced the underlying action against the Port Authority, among others, to recover for personal injuries caused by Mr. Formica s alleged exposure to asbestos while he worked at the World Trade Center ( WTC ) as a computer analyst for ADT. Mr. Formica was deposed on November 17, 2010. He testified that he began working for ADT in 1973. Around that time, ADT leased space from the Port Authority on the 91 st and 92nd floors of the building then located at One WTC. ADT transferred Mr. Formica to this location in 1974 after the company promoted him to senior programmer. ADT occupied that space, and Mr. Formica continued in such employment, through 1984, when ADT moved its offices to Parsippany, New Jersey. On November 1,2011 the Port Authority commenced the within third-party action against ADT for indemnification and contribution. ADT now moves to dismiss the third-party action on the ground that the Port Authority has not sufficiently alleged a cause of action. It seeks dismissal of the third-party complaint on the grounds that: (1) All of the claims therein are barred by New York s Workers Compensation Law ( WCL ); (2) The Port Authority cannot produce the lease at issue, nor the purported indemnification provision; and (3) Mi. Formica s deposition transcript contradicts the allegations in the third-party complaint regarding ADT s liability alleged herein. 1 Mr. Formica s deposition transcript was submitted as Exhibit G to the third-party complaint. -2- [* 4] DISCU$SIrn The allegations in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense. CPLR 3013. On a motion to dismiss pursuant to CPLR 321 1, the court s task is to determine only whether the facts as alleged, accepting them as true and according plaintiff every possible favorable inference, fit within any cognizable legal theory. Ladenburg Thalmann & Co. v Tim s Amusements, Inc., 275 AD2d 243,246 (1 st Dept 2000); see also 344 E. 72 Ltd Partnership v Dragatt, 188 AD2d 324 (1st Dept 1992); CPLR 3026. [Tlhe court s role in a motion to dismiss is limited to determining whether a cause of action is stated within the four corners of the complaint, and not whether there is evidentiary support for the complaint. Frank v Daimler Chrysler Corp., 292 AD2d 118, 121 (1 st Dept 2002). Those factual allegations that do not state a viable cause of action, that consist of bare legal conclusions, or that are inherently incredible or clearly contradicted by documentary evidence are not entitled to such consideration. Skillgames, LLC v Brody, 1 AD3d 247,250 (1 st Dept 2003). The court notes that ADT has not included with its moving papers a copy of the thirdparty complaint. This omission in and of itself precludes dismissal, see 344 E. 72 Ltd. Partnership v Drugaft,supra, and on this ground alone AJ3T s motion to dismiss should be denied. That being said, the court also finds the claims at issue herein are not barred by the WCL. In this regard, the court recognizes that the WCL limits the remedies available against an employer when an employee is injured during the course of his or her employment, see WCL -3- [* 5] Q 11, and that it provides tlie sole exclusive remedy against the employer n place of any other i liability whatsoever, to such employee, his or her personal representatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom . , . . Id. For purposes of the WCL, however, the terms indemnity and contribution shall not include a claim or cause of action for contribution or indemnification based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered. Id. In other words, an injured party s employer may be impleaded by a third-party where the employer has previously consented to such action in writing. The Port Authority produced the third-party verified complaint in opposition to this motion. It provides, in relevant part (Affirmation of Simone Nicholson, Esq., dated January 23, 2012, Exhibit 2): 14. In or before 1974, American District Telegraph, its predecessors, or successors, n/k/a ADT, leased office space ( ADT leasehold ) on the 91st and 92nd floors of the World Trade Center, Tower 1. . . . 16. The lease or leases entered into between . . . ADT and the Port Authority required that, as the tenant, ADT purchase and maintain liability insurance naming the Port Authority as an additional insured . . . . 19. A copy or copies of said lease i s in the possession of ADT. 20. Plaintiff Gaetano Formica. . . was employed b y . . . ADT between the years 1974 and 1984 during the time that construction, renovation, alteration, or repairs contracted for by ADT or its predecessors were performed odin the ADT Leasehold at 1 World Trade Center. . . . 28. That by an agreement/contract/leasebetween . . . ADT and The Port Authority, which was in full force and effect, at all times of exposure alleged in Plaintiffs Complaint, ADT, among other responsibilities was required to repair, replace, -4- [* 6] c keep in safe working and operating condition, its office spaces located w i t h 1 World Trade Center. 29. If Plaintiffs sustained injuries and damages in the time, place, and manner set forth in the Complaint, such damages and injuries were caused by Third-party Defendant s failure to perform or to properly, responsibly and safely have said work performed pursuant to the terms and conditions provided for in the written lease agreement, and the Port Authority will have been damaged, and will be entitled to full indemnification b y . . . ADT. . . . 35. That if the Plaintiffs recover damages as against the Port Authority, The Port Authority will be damaged thereby and will be entitled to be defended, indemnified, and therefore be held harmless therefrom by . . . ADT, as the party primarily responsible for any and all loss or damage as the Plaintiffs may suffer, or for such proportionate part thereof as is attributable to t h s breach of contract, breach of warranty, negligence and/or strict liability in tort. . . . 39. That if there is any negligence on the part of the Port Authority, which is denied, will be only passive [sic] or secondary in nature, while the negligence o f . . . ADT will be active, primary, and affirmative. . . . 40. That by reason of the foregoing . . . ADT will be liable to the Port Authority, and will be bound to indemnify the Port Authority in the amount of any recovery obtained by the Plaintiffs against the Port Authority, and will be bound to pay the Port Authority the amount of any such verdict or recovery, as well as any and all attorneys fees, costs, and disbursements. . . . Whether the Port Authority has alleged sufficient facts to demonstrate that the parties entered into an express agreement such that its claims against ADT are not primafacie barred by the Workers Compensation Law generally requires a two-part inquiry: (1 ) whether the partes entered into a written contract containing an indemnity provision applicable to the site or job where the injury giving rise to the indemnity claim took place; and (2) if there is a written contract, whether the indemnity provision was sufficiently particular to meet the requirements of section 1 1. Rodrigues v N & S Bldg. Constrs. Inc., 5 NY3d 427,432 (2005). ADT argues that the Port Authority cannot demonstrate the existence of a written agreement under the first prong of the Rodrigues test, and, a-fortiori,that it cannot demonstrate its purported terms under the second prong. -5- [* 7] c In Flores v Lower E. Side Sew. Ctr., 4 NY3d 363 (2005)) relied on by ADT, the Court of Appeals determined that a contractor was bound by an unsigned contract because it had, among other things, acted in conformity with the contracts terms and requiremcnts. In so holding, the court reiterated the common-law rule wlicli authorizes review of the course of conduct between the parties to determine whether there was a meeting of minds sufficient to give rise to an enforceable contract--governs the validity of a written indemnification agreement under Workers Compensation Law 6 11. Id. at 370. ADT argues that it cannot be similarly bound because here there is no evidence to demonstrate the lease s existence or its terms. ADT compares this case to Bush v Mechanicville Warehouse Colp., 79 AD3d 1327 (3d Dept 2010). In that case, the plaintiff employee suffered a brain injury during the course of his employment when he fell from a ladder in the owner s warehouse. After the employee commenced an action alleging negligence and violations of Labor Law 5 200 against the owner, the owner brought a third-party action against the employer for indemnification based upon an indemnity provision in an expired lease between the third-party plaintiff and an entity related to the third-party defendant. The Appellate Division dismissed the complaint because there was no written express indemnity agreement between the owner and the employer. Id. at 1330. Among other things, the court noted that because the relevant portions of Workers Compensation Law 5 11 were enacted to abrogate employers liability to third parties for injury to their employees except in the most limited circumstances, the exception [rlequiring the indemnification contract to be clear and express furthers the spirit of the legislation. Id. (quoting Tonking v Port Auth. cfN. Y. & N.J., 3 NY3d 486,490 [2004]). Both Floves, supra and Bush, supra involved appeals from summary judgment motions. -6- [* 8] The motion at bar, on the other hand, is a pre-answer CPLR 321 l(a) motion to dismiss on the pleadings. Giving the third-party plaintiff all favorable inferences, see 344 E. 72 Ltd. Partnership v Dragatt, supra, the Port Authority has alleged sufficient facts to proceed with this action. Accordingly, the Port Authority should be allowed to, among other tlings, proceed with discovery through the vehicles provided for by Article 3 1 of the CPLR. In light of the court s ruling, the Port Authority s cross-motion is denied as moot. The court wishes to note, however, that the Port Authority s application to amend its pleading does not comply with the requirements of the CPLR insofar as its cross-motion is not accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading. CPLR 3025(b). Accordingly, and in light of the foregoing, it is hereby ORDERED that ADT Security Services, Inc s motion to dismiss is denied in its entirety; and it is further ORDERED that the Port Authority of New York and New Jersey s cross-motion to amend the pleadings is denied as moot. This constitutes the decision and order of the court. DATED: L b /.PSHERRY KLEIN ~ E I T L E R J.S.C. JUN 1 4 M12 NEW YORK C :fXJNTYCLERK S OFFICE 2 The deposition testimony does not so refute the allegations of the complaint as to rise to the level of a complete documentary defense. C .CPLR 321 l(a)(l). f -7-

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