Guaman v 419 Park Ave South Assoc., LLC

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Guaman v 419 Park Ave South Assoc., LLC 2012 NY Slip Op 32629(U) September 19, 2012 Supreme Court, New York County Docket Number: 112995/09 Judge: Shlomo S. Hagler 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. SCANNEDON I011712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Index N GUAMAN, JOSE OCTAVIO vs. MOTION DATE 419 PARK AVENUE SOUTH SEQUENCE NUMBER : 004 MOTION SEQ.NO. 04 SlJMMARY JUDGMENT The following papen, numbered 1 to ,were read on this motion tolfor Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavlts - Exhibits - Exhlblts IW s ) . INo(s). . I IW s ) . Replylng Affidavits Upon the foregoing papers, it is ordered that this motion is I THIS MOTION/OSC IS GRANTED AS SET FORTH IN THE ATTACHED SEPARATE WRITTEN DECISION & ORDER FILED OCT 17 2012 NEW YORK COUNTY CLERK'S OFFICE Dated: 9 /rq//2 ..................................................................... CI]FASE DISPOSED DENIED 2. CHECK As APPROPRIATE: .............. MOTION IS: GRANTED I. CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER DO NOT POST NON-FINAL DlSPOSlTPN 0GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COlJRT OF THE STATE OF NEW YORK COTJNTYOF NEW YORK: IAS PART 17 JOSE OCTAVIO GUAMAN, Plaintiff, Index No, 112995/09 -against419 PARK AVENUE SOUTH ASSOCIATES, LLC, WALTEK AND SAMUEL INCORPORATED, and PRAESI1)IAN CAPITAL MANAGEMENT 11, LLC, 419 PARK AVENUE SOUTH ASSOCIATES, LLC, w w r m cyr SAMUELS INCORPORATED S/M WALTER ANI) SAMUEL INCORPORATED and PRAESIDIAN CAPITAL MANAGEMENT TI, LLC, NEW YORK G O U N N CLERKS OFFICE Third-party Plaintiffs, Third-party Index No.: 590378l10 -I his action arises out o f a construc.tion site accident which occurred oil August 7, 2009 at 4 19 Parh Avenue South in Manhattan. Plaintiff Jose Octavio Guanzan ( plaintiff or Guaman ), ; I construction wol-kcr, alleges that he was injured wlien he k l l of[ an unguarded scaffold while painting tbc ceiling of the eighth lloor at said location. I n motion seqwtiw number 004, plaintiff moves, pursuant to CPI,R 5 32 12, for partial sunimaryjuilgmeiit un the issue of liability under Labor Law 5 240( 1 ) against defendants 41 9 Park A W I I L ISouth Associates, l.,l.,C ( 4 1 9 Park Avenue South ) and Praesidian Capital Managclncnt 11, ~. [* 3] I , I C ( -haesidian )(collectively defendants), and for an ordcr scttiiig an immediate trial on i h a g c s I n motion sequcncc tiumbcr 005, defendants/third-party plaintifh 4 19 Park Avenue South, Walter & Samucls, Inc. s/l-L/aWalter and Samuel, Inc. ( Walter & Samuels ), and Praesidian iiiovc, piirsuant to C PLK $ 32 12, for an order granting conditional indemnification over and against third- party defendants .lohi1 Keiiip C onstruction and Development, Inc. ( Kemp Construction and Drvelopment ) and . J ~ h r i Keinp Construction Corporation ( Kemp Construction Corp. ) (collectively third-party defendants ). In motion sequence number 006, third-party defendant Kcinp Construction Corp. moves for an ordcr: (1) pursuant to 22 NYCRR 202.2 l(d), permitting it to make J iLitc i i i o t i o n ii)r bLiiiiiiiriry judgment after the filing of tlie note of issue; (2) pursuant to CPLR $ 32 12, dismissing third-party plaiiitiffg second cause of action for commoii-law indemnification id contribution; and ( 3 ) pursuant to CPLR $ 321 l(a)(7), CPLR 5 3013, and CPLR 5 3014, disniis.siiig third-party plaintiffs first and third causes of action ror contractual and common-law i n d c r i i n i ticat ion, hrtxuli ofcontract, and contribution. Third-party defeiidaizt Kemp Construction and 1)cvclopinent cross-iiiovcs, pursuant to C PI,K 32 12, for suniiiiary judgment dismissing third-party i~laiiitilli co1itr:ictual and common-law indemnification and contribution claims. Motion scquence nuinbcrs 004, 005, and 006 are consolidated herein for disposition. BACKGROUND 410 l ) ~ Avcuue South and Walter & Samuels were tlic owiicr and iiianagiiig agent, k respecrively. of tlit.building on tlie date ofthe accident. Praesidian was the lessee ofthe eighth floor. I A 1 t 110 ugh plaint i ft ti ce of i m t ion seeks summary j udgment against defendants, clear that he is seeking summary judgment only against 41 L, k i 1 . 1 ~ Avenue South and Praesidian (Plaintiffs Memorandum of I:aw, at 1). 5 p I L i i i i ~ i fi li~i ~ i i i ~ ) ~ ~ ~ofi law mal\es ~ r ~ l ~ i ~ i i -2- [* 4] On April 17, 2009, Praesidian hired Kuinp Construction and Development as a general contractor to perforin certain construction work. Plaintiff was an employee of Kemp Construction and Drvelopnient Kemp Construction Corp. is a related entity. Plaintiff testified at his deposition that, oii August 7, 2009, he was working on the eighth floor of 410 Park Avenue South for John Kernp Construction (Plaintiff EBT, at 23, 34-35). According tu plaintiff, hc was assigned to work with a partner, Edel Vargas, on the night of the accident (id at 40, 45). At the lime of the accident, plaintiff was on a scaffold painting pipes in the ceiling (dat 5 5 , 61). The scaffold did not have any guardrails, and none of the other scaffolds on the site had any guardrails (Zd at 41, 58-59). In addition, plaintiff was neither provided with any wfety bcltx nor ropes at the time of the accident (id.at 75-76). While painting at about 10 P.M., plaintiff put his container down on the platform of the scaffold and stood upright, hitting his head on a pipe in the ceiling (id at 80). Plaintiff lost his balance and fell off the scaffold, approximately fivc feet to the Iloor txlow, landing on his head (id. 80, 84-85). Plaintiffadmitted that he had at cc~t~sui~ied beer with his luncli at about 1:30 P.M., and another beer OII his break at about 7 P.M. one (Id at 50-5 I ). Edcl Vargas ( Vargas ) testitied that hc was assigned to 4 19 Park Avenue South on the night ofthe accident (Vargas EH I , at 44-45). Vargas was in a nearby room, approximately 20 feet away, when he heard a loud bang, which was plaintiff hitting the floor (id at 45). Vargas immediately wcnt over plaintiff, who was unconscious (id. 46). at 10 .John Kcnip ( Kernp ) testified that he is the president of Keinp Construction and Developnitrnt ( Kenip EBT, 10). Kcnip Construction Corp. was subsequently incorporated in 2000 at ( i t / at 13). Kcmp Construction and Development was hired to perform work on the eighth floor, -3- -- -. .. . . .. . . . . [* 5] which included painting the ceilings in the hallway wlierc the accident occurred (id. 29). Kemp at was not on site at the time ofthe accident and only learned ofthe accident a few days later (zd at 85, 128). According tu Kemp, his company provided two scaffolds for the prqject (id.at 44, 47). However. Kenip admitted that the scaffblds did not have any guardrails (Ed at 141). Kemp further testilied [hat his company did not provide workers with any vests or safety nets (id at 92-93). Juhn Mansfkld ( Mansfield ) testified on behalf of Praesidian (Mansfield EBT, at 8). Mansfield leased oflice space from 4 19 Park Avenue South, and hired one of the Kemp entitics to work 011 the project (id at 9, 11). Mansfield did not witness the accident (id. 20). at r)l,lli1tiffconimcnced this action on Novcmber 1 7, 2009, seeking recovery for violations of Labor Law 8s 300, 240 and 241(6) and ror common-law negligence. On May 6, 2010, 419 Park Avenuc South. Walter & Sarnuels, and Praesidian commenced a third-party action against Kemp Construction and Development and Kemp Construction Coi-p.,seeking contractual and common-law indemnification, contribution, and daniages for breach of contract for failure to procure insurance. Plaintiff tiled a note of issue and certilicate of readiness on August 4,201 1. DISCUSSION Sunimarv ,Judzment Standard l lic proponciit of a motion for suniniary judgment must demonstrate that there are no matorial issuus of h c t i n dispute, and that it is entitled to judgment as a matter of law (Dall~isi s i ~ i m , 39 AD3d S / c ; ~ ~ ~ h o ~1 i s o r~i ~ W C /r 303, 306 [ 1 st I k p t 20071, citing WinegrudvNew York liriiv A4d . 64 N Y Y 8 5 I 853 [ 1985 I). Once this showing has been made, the burden shifts to the party ~ op11ostiig the motion to prescnt evidentiary facts in admissible form sufficient to raise a genuine, -4- [* 6] triable issue of f act (Muzurek v Metropolitan Mziseiirn of Art, 27 AD3d 227,228 [ 1st Dept 20061). On a m u lion for summary judgment, issue-finding, rather than issue-detcrniination, is key (Shapiro 11 BO~//CIY/IY/ /feu,\ I- olp , 70 AD3d 474, 475 [lst Dept 2010]). If there is any doubt as to the cxistcticc of a triable issue of fact, suilninaryjudgment must be denied (Xotuba Extruders v Ckppos, 46 NY2d 323,23 1 [ 19781). Plaintiffs Motion for Partial Summary Judgment Under Labor Law 6 240UJ 1,abor Law ij 240( l ) , also known as the Scaffold Law, provides, in relevant part, that: All contractors and owners and their agents . . . in the erection, dctnolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give DroPer protection to a nerson so employed (cmphu.si,~ I rLioc . r) I,nbor ILaw $240( 1 ) imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty which proximately causes an injury (Kocovich v ronsoliduted Edison I o . 7 8 NY2d 509, 513 119911). To succeed on liability under Labor Law tj 240(1), the plaintiff tiiiist eshblish twu elements: ( 1 ) a violation of the statute (ix, that the owner or general contractor failed to providc adequate safety devices), and (2) that the violation was a proximate cause of the injuries (Bltrh NrIiXhhorhoorJ 110~1s. ,%~rv.s. of 11 N.Y C ity,1 NY3d 280, 287 [2003]). Tlic purpose 01 the statute is to protect[] workers by placing ultimatc responsibility for safety practices at b~il~iiiig coiistruction jobs wherc such responsibility actually belongs, on the owner and general contractor, instcad of on workers, who arc scarccly in a positioii to protect themselves from accident -S- [* 7] I hcrniirig C ozinly Perjorvviing Arts, 65 NY2d 5 13, 520, rearg denied 65 NY2d 1054 (Ziiiiiiici. v 11 9851 [internal quotation marks and citations omitted]). Initially, thc Court notes that 41 9 Park Avenue South, the owner, has not disputed that it may bc found liable under Labor Law 9 240( 1 ). Praesidian, the lessee of the eighth lloor where plaintiff was injured, also has not disputed that it may be liable under the statute. Since Praesidian hired I<emp Construction and Devclopiment, which was the general contractor and plaintiff s employer, it cannot escape liability under Labor Law 8 240( 1 ) (see Kanc v C nzrndnrous, 293 AD2d 309, 3 1 1 [ 1 st Dcpt 20021 [ A lessee of propcrty under construction is deemed to bc an owner Ior purposes of liihility under articlc 10 of New York s Labor Law ]; Copwfino v Wurd, 100 AD2d 565, 566 [2d Dcpt 19841 [ owner cnconipasses a person who has an interest in the property and who f~ilfillrcl role uf owncr by contracting to have work performed for his benefit ]). the I n this Labor Law case, plaintiff has cstablishcd prima facie entitlement to summary judgment on his 3 240( I ) claim. Plaintifftestified that, whilc he was painting thc ceiling, he fell from a scaffold that did not have any guardrails, and that none ofthe scaffolds on the site had any guardrails (Plrlintiff~~RT, 58-Sc)). Plaintifffurther testified that he was not given any safety belts or ropcs at 41. (id. 75-76), I lius,plaintiff has shown that the scaffold did not provide proper protection, and at that he was not given any other safety devices that would havc prevented hini from hlling (sec Lr:c~rrio 11 h/~~ti.opo/i/Lrri ln.s C- o , I 1 AD3d 303 I 1st Dept 20041 [where thcrc was uiirebut tcd Lifc. kstiinoiiy that plaintiff was injurcd whcn hc fell froin a scaffold without guardrails and was not provided other protuctive devices, defendants liability was established as a matter of law]; liorJi.r,qzie: I F o w s / C icy, qS .4,csoc , 234 AD2d 68, 69 11 st Dept 19961 [where plaintiff fell from /i f scaffold eight I eet from tlic ground that lacked guardrails, safety devices, and the proper number of -6- [* 8] wood planks, plaintiff established a statutory violation and that such violation was a proximate cause of his injuries]). Defendants and third-party defendants contend that plaintiff was the sole proximate cause of his injuries. bccause hc was intoxicated at the time of lib accident. They rely on the following medical rccords from Bellevue Hospital: ( 1 ) an EMS patient call report, which notes that plaintiff wab f o i i t i d ambulatory, walking wobbly, disoriented due to alcohol con~umptioii (Ryan Affirm. in Opposition, Exhibit A, at BHC 000020-23); (2) an initial assessnieiit form, which indicates that what plaintiff does to stay healthy and reduce stress is drink (id at BHC 000041-43); (3) notes of an interview conducted by 311eniergency room physician, Dr. Alfred Cheng, that plaintiff consumed 6 drinks tonight ( i d at BHC 000046); (4) a nLirse s notes indicating that plaintiff had alcohol on his breath wlien he was brought to the hospital (id, BHC 000047); ( 5 ) a note by an attending at at physician in the emcrgency medicine department who recorded that plaintiff was intoxicated (id. BHC 000048): ( 6 )i t progress note indicating that plaintiff fell while EtOH intoxicated (id at BHC 000040-5 1 ); ( 7 ) triage notes indicating alcohol on plaintiff s breath (id. BHC 000084); (8) an at Unschedulcci history and Physical assessment which records that [tlhis 57 [year old] male with no prior neuorological history who is currently intoxicated presents to Bellevue Hospital via EMS after falling last night while intoxicated o n Etoh and suffering head trauma, intoxication is a barrier to .issessmcnt, id that plaintiffs gait could not be evaluated given patient s concurrent iiitvkicated state for safety as (patient]fall risk at tinie ofexamiliation (id.at BHC 000089); and ( 9 ) ; note by Mausuini Khand, M.D. recording plaintiffs admission that he had several beers (id i at RHC 000 138). -7- [* 9] 1 >efendants and third-party defendants also point to the deposition testimony of Dr. Alfred Cheng ( Dr. C heng ),a supervising resident in the Bellevue I lospital emergency department on the date of plaintiffs accident (Cheng EBT, at 17- 19). Dr. Cheng personally interviewed plaintiff and recorded the statement that plaintiff had consuiiicd six drinks (id.). Bascd upon his review of the medical rccords. Dr. Cheng opined that plaintif f wasintoxicated when he presented at the emergency I00lll (id. 27). at A plaintifi s intoxication can be the sole proximate cause of an injury (see Berman v Francliiscd Dnlstrihs.. Inc . 88 AD3d 755, 756-757 [2d Dept 201 I]; Bondunella v Rosenfeld, 298 h D ? d 41 942 14th Dept 20021). However, if a statutoiy violation is a proximate cause of an 1 injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for tlic ?c)O), ii1.iin-y. it necessarily incans that there has been no statutory violation (Blake, 1 NY3d at If a scafl old lacks railings and other safety devices do not provide proper protection, the plaintiff cannot bc the sole proximate cause ofthe accident (see Morirn v 200 Vurick S/. A.csoc., LLC ,80AII3dS5ll,582 [2dL>ept2011],lvdiismissed17NY3d7561201 11 [sincethescaffoldlacked safety r3iliizgs, plaintiff s allegcd intoxication was not the sole proximate causc of his injuries]; Porihrclskr h 13 19 KMO-361 RrLrlty Assoc , 294 AD2d 5 5 2 , 553-554 [2d Dcpt 20021, Iv denied98 N Y N [2003J [ I3ccause the lack of safety devices was demonstrated to have been a proximate cause of the decedent s accident, the decedent s intoxication was not the sole proximate cause of his denth J: Scqytruif 1 A1ii~ ph.v fi umrly / rtrst,284 AD2d 99 1 ,992 [4th Dcpt 200 1 I Ialthough defendant 7 Kcmp ( onstnrction Corp. also subniits an afilavit from Clovus White, onc of plaintiff s co-workers, who statcs that, prior to the accident, plaintiff had been drinking inappropriately, both brforc anc! during his working liours unless a supervisor was present and that [dlrinking beer. tccluila atid vodka liad become the norni 011 Friday nights on the 41 9 Park Avenue South projcct (White Aff.,, 17 6, 7). -8- [* 10] raised an issue of fact whether plaintiff was intoxicated, that issue was insufficient to defeat plaintiffs motion for partial summary .judgment; Because there is no dispute that there were no safety devices provided, this is iiot a case where a reasonable jury could . . . conclude[] that plaintiffs actions were the sole proximate cause ofhis injuries, and consequently that liability under Labor Law $ 240( I ) [will] not attach ] [internal quotation marks and citation omitted]; Huulotte P r i d l ~ ~ i t /ns C o of A i r ] , 266 id 17 AD2d 38, 39 [lst Dept 19991 [ Nor can it be said that plaintiffs alleged intoxication was the sole proximate cause of the accident ]). Whilc the clefelidants and third-party defendants contend that plaintiff s intoxication was the sole proximate c m s c of his accident, they have not disputed that the scaffold lacked guardrails or other safety dcvices. Indeed, while the plaintifftestified that the scaffold lacked guardrails (Plaintiff ERT . at 5 S - S c ) ) , John Kcinp, the president of Kemp Construction and Development and Keinp C onstriiction C orp . also testified that the scaffolds on site did not have any guardrails (Kemp BBT, at 14 1 ), l lius, sincc thc lack of a guardrail was a proximate cause of thc accident, plaintiff cannot be dt.emed to be the sole proximate cause of his accident (.wMoran, SO AD3d at 582).j Morcover, defendants claim that plaintiff was required to submit an expert affldavit is withoiit mcrit. Given that deftndants have iiot disputed that the scaffold lacked a guardrail and that plaintiff fell from the scaIfold, proxiniate causation is not beyond the ken of the average juror (.we Pcoplc. 1 Tujdor., 75 NY2d 277, 288 [1990]). Finally, dcfendants and third-party defendants argue At oral argiiment, dcfendants also argued that there is an issue of f act as to whether K was the sole prwimLtte cause because he improperly assembled the scaffold. However, del tiiclants have not offered any cvidence that (a) plaintiff had adequate safety devices at his disposal; ( b ) lie both knew about thcm and that lic was cxpected to use them; (c) for no good reason he chose not to use them; and (d) had he used them, lie would not have been injured (Tzic K m ~ ~ / n93 AD3d 438, 439 [lst Dept 20121). v p ~ , 7 3. p13iii ti -9- [* 11] that tliere are issues of fact as to plaintiff s credibility, given that his accident was unwitnessed. However. there is no dispute that plaintiff s accident occurred and defendants and third-party defendants have not provided any evidence to raise a substantial challenge to plaintiffs credibility as to any material fact (,see KZein 17 C iq of New York, 89 NY2d 833, 835 [1996]; Rivera v Dufnu C oristi* I o , L t d , 27 AD3d 545,546 [2d Dept 20061; Franco v,Jemal, 280 AD2d 409,410 [ 1 st Dept ?oo I 1 ). Accordingly, plaintiff s motion for partial summary judgment on the issue of liability under Labor Law $ 240( 1 ) is granted as rcqucsted only against defendants 41 9 Park Avenue South, the owtier. and Praesidian, the lcssee of the eighth tloor. 1°C issue of plaintiffs damages shall await the trial of this action. Third-party Defendants Kemp Construction and Development and Kemp Construction Corri. s Motions for Summary Judpment Dismissinv the Third-party Claims for I n d e m ni fica t i o n and C D n t ri butio n Thild-kil-ty Defendants Kump Construction and Development and Kemp Construction Corp. encli scparntelq niove for summary judgiiieiit dismissing the third-party claims against them for coiiitiion-hw iiiciemnificatio11~ii and contribution, asserting that plaintiff did not sustain a grave injury. I n so moving, thc third-party defendants seek leave to bring their motions after the deadline for making summary judgmcnt motions. Neither plaintiff Guaman nor defendantslthird-party plaintiffs 4 19 Park Avenuc South, Walter & Samuels, and Praesidian oppose these branches of tlic 1h i rcl - 17 art > d c ft.nd an t s I ot i o11s (Petersen A ff?rim, i 11 n (Ippo siti 011, 7 3 ) , In thc abscnce o f a court order or rule to the contrary, CI LR 5 3212(a) requires sumniary judgiiicnt rnotions to be iiiade no later than oiic hundred twenty days after the filing of the note of -10- [* 12] In the absence of a court order or rule to the contrary, CPLR 5 32 12(a) requires suniniary ,judgincnt inotions to be made no later than one hundred twenty days afler the filing of the note of issue, except with leave of court on good cause shown (Filannino v Trihnrough Bridge & liinnel dliitli , 34 AD3d 280, 281 llst Dept 20061). Under the standard announced in Brill v C ity o f h i w I mk ( 2 N Y 3 d 648, 653 [2004]), leave to f-ile a late summary judgment motion requires a showing oJ good ciiust for tlic delay in iiialiiiig the motion. Here, plaintiff filed a note of issue on August 4, 201 1. A so-ordered stipulation dated November 15,20 IO required motions for summatyjudgment to be made within 60 days of the filing of the note of issue (Mysliwiec Aftirm. i n Support, Exhibit 5 ) . Keiiip Construction and Ikvelopment and Kcmp Construction Corp. assert that, on October 7, 201 1, after the deadline had d r c x l y cvpiwd, plaintiffs treatiiig physician, Dr. Jason W. Brown, issued a report indicating that plaintiff is not totally disabled (id , Exhibit 7). fl-rus,Kcnip Construction and Development and Keinp C cmstriictioiiCoi+p. s motions regarding the grave injury issue could not have been brought until Lifter this evidence had come to light. Accordingly, the Court finds that third-party defendants have shown good cause for thc delay in making their iiiotioiis for summary judgment. I hird-party defendants motion fbr siiiiiniary judgiiienl on the grounds that plaintiff did not sutl ttr ii g r w e iii.jury is bascd oil Workers Compensation Law 4 1 1 , which: 1 Plrohibits third-party iiideimiification or contribution claims against cmployers, except where the employee sustained a grave injuiy, E the claim is hascd upon c? provision in a written contract entered into prior tu the accident or occurrence by which the einploycr had expressly agrccd to contribution to or indemnification ofthe claiinaiit o r pci-son asserting the C ~ U S C action for tlic typc of loss suffered. of [cI? i p h s i e v LILIIIL L-I] - 1 1- [* 13] ( R o J r / x / w \ 2 CB S Bldy C o~ti .r, Inc , 5 NY3d 427, 429-430 [ZOOS]). The statute provides that a 17 grave iii*jury is one ur niore of the following: [Dleath, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent d e a t h s , loss of nose, loss of ear, permanent and severe facial disligurenient, loss of an index finger or an acquired injury to the brain caused by ;in external physical force resulting in permanent total disability. (Worhers Coiiipensation Law lj 1 1 [eniphasis added]). I n Hzihcir t Aqsrcr C 121h, Inc. (3 NY3d 408, 417 [2004]), the Court of Appeals defined permanent total disability as unuinployability in any capacity. In any capacity is in keeping with Icgislativc intent a i d sets a tilore objectively ascertainable than equivalent, or competitivc, ClnploynleI11 (rd ), Plaintift s verilied bill orparticulars alleges that he suffered a [t]raumatic brain injury, and that -1 i It 15 ui~lrl~ely plaintiff will ever be able to return to his career as a construction worker that ( V c r i t i d B i l l ol l~;u.ticulars,11 1\ 30-3 35-36). Huwevcr, the evidence indicates that plaintiff is not 1, Lineriipluyahle in any capacity. A report datcd October 7, 20 1 1 from plaintiff s treating neurologist, Dr. .lason W, Brown, indicates that: ( 1) plaintiff is below average in cxecutive function, visual/.;patiiil, aiid niotor skills, (2) plaintiff is above average in memory, attention, information ing \pct ci. and verbal function, and (3) plaintiffs global cognitive score is in thc above avcrrigc langu (Kyat1 Affirm. in Support, Exhibit H, at 1 ). I n a report dated October 1 I , 201 I , William H, 1 I c d , .Ire,M.D., a neuropsychiatrist, states that hc found no residual objective evideiicc of a n y ncurolngical invnlvcmcnt, or clinical evidcncc of brain injury on neurological examination, o r cervicd rxiiuilopatliy. o r lumbar radiculaopathy from the accident of August 7, 2009. He does -12- [* 14] not have ;i grave injuiy as defined under the Workers Compensation Law as an injury resulting in Lotal pertnanent disability, rendering him unemployable in any capacity (id, Exhibit ., at 17). I Mitchell S Kaps, M.II,, a neurologist, also indicatcs that [plaintif l s] neurologic status, including cognition. is entirely nonual. TIiere is no evidence of neurologic deficits referable to the accident of 8/7/09 ( I C / , E d i i h i t K, at 4). In light of this evidence, and given that 41 9 Park Avenue S o u t h , Walter & Samuels, and Pracsidian have not opposed this part of third-party defeiidants motions seeking dismissal due to a lack of grave injury, the third-party claims for common-law i n de I 11I I i fi cat i o 11 and c o 11 t r i b 11t i o 11 ;ire d i smi ssed . I)efendants/Third-Partlv Plaintiffs 419 Park Avenue South, Walter Cpr Samuels, and Praesidian s Motion for a Conditional Order of Indemnification and Kemp Construction and Development s Cross-Motion for Dismissal of the Third-party Claim for Indemnification4 , I)cfcndants/tliird-party plaintifh 4 14 Park Avenue South, Walter & Sainuels, and Praesidian 1110~ c lor ;i cunditional order of indemnification pursuant to an indemnification agreeincnt dated No\t.mber 4, 7005 betwcen Walter 62 Saiiiuels and Keiiip Construction and Developnient pending the f i l i a l determination of def endants/third-party plaintiffs alleged negligence. 4 19 Park AVCI~LK South. Wnltcr cYr. Saniuels, and Praesidian argue that it is clear from the actions of John Keinp and thc luiigirugt. of the indt.ninification agrcement, that Keinp Cmstrwtion and Development intcnded 10 1iide111i1i~ y Ilieni 111 this action. In addition, 41 9 Park Avenue South, Walter & Samuels, and I rnesidian rtquest a conditional order of indcrnnitication to account for out-of-pocket costs due to Keiiip C unstruction and Development s insurer s failure to defknd them. Althoiigli Kemp C uiistruction C orp. originally i.noved, plirsuant to C P I R 5 32 1 1 (a) (7) tu disniis5 tlic thiid-party claims for contractual irzdemnification, it subsequently withdrew this branch of its motion in reply (Mysliwicc Reply Affirm., 7 4). 4. -13- [* 15] I c) suppoi-t tlicir position, 41 9 Park Avenue South, Walter & Samuels, and Praesidia11submit an affidavit h n i Jrtson D. Drattell ( Drattell ), the managing member ofpraesidian, who states that, in O c t o l w 3,005 he contactcd Kcinp Construction and Developinelit to furnish tlie materials and ~ lLibor necessary tot- the completion of Praesidian s suite located at 419 Park Avenue, Suite 800 (Drattcll Aff., 1 3 ) . According to Drattell, John Kemp of Keinp Construction and Development 1 sirbmittccl a proposal dated October 14, 2005 and an AIA Standard Form of Agreement 11 11 memorializing the terms ofthe proposal (id,, 4-5). Kemp provided an indemnification agreement 1 1 separate fi.oni tho proposal and AIA Standard Form of Agreement (id, 6, Exhibit C). I lic indcixinification agreement also contained a n insurance procurement paragraph which required Kemp Cunstriic tiori and Development to purchase, at its sole cost and expense, insurance naming thc owner and managing agent as additional insureds (id, 7). 1 IlrLittcl fiirt1it.r states that, i n April 2009, lie contacted John Kenip to provide additional I constl-iiction serviccs consisting of upgradcs to tho office space (id, 8). According to Drattell, John 7 Keinp provided a proposal dated April 17,2009, and informed him that he would adhere to all ol the 17 saiiic terms and conditions for the initial build-out for the suite (id., 9, 10, Exhibit D). Kemp advisccl that lit. woit Id sccure iiisurance and provide certificates of insurance pursuant to the 1 itidcmtiilic,itiun agreement dated November 4, 2005 (id, 1 1 1). Keiiip subsequently provided certificates o f insurance naming 41 9 Park Avenue South, Pracsidian, and Walter & Samucls as ~lciditiondin~iir.eds,with appropriate policy limits as contained in the indemnii-?cation agreement tlatccl No\embcr 4, 2005 ( i d .11 12- 13, Exhibit C). After plaiiitiff coniniciic~d lawsuit, Drattcll 11 this contacted lienip. wlio stated that Kemp Construction and Developtiicnt was required to defend the ,tction piirsitant to the indemnification agreement dated November 4, 2005 (id., 15). 1 1 -14- [* 16] I n opposition, and in cross-rnoving to dismiss third-party plaintiffs contractual indemnitlcatiun claim, Keiiip Construction and Developments argues that it did not agree to indemnify 4 19 Park Avenue South, Walter & Samuels, and Praesidian for the 2009 project. Kemp Construction and Dcvelopineiit submits an affidavit from its president and chief executive officer, John Kemp, in which he statcs that, after he submitted a bid proposal in 2009, the parties did not discuss the insurance procurement provision (Kemp Aff., 1 6, 13). 7 Kemp faxed a certificate of 1 insurance to Walter & Samuels with the policy limits that it requestcd in 2009 (id,1 13). Kemp believes that he spoke with an employee of Walter & Sainuels named Susan Briganti (id.). According to Kemp, he never discusscd the issue of indeniniiication with either Drattell or Briganti (id 1 14). Kemp statcs that, in November 201 1, Drattell called him to persuade him to agree that 1 ~ thc 3009 projcct was undertaken pursuant to the same AIA terms and conditions as the 2005 project; however, he refused to agree (id, IS). Kemp states that he was informed latex that the AIA form 1 1 contract go\ erning the 2005-2006 construction build out contained an indemnification provision wliich was not part of thc 2009 agreement between [Kemp Construction and Development] and Praesidian (id). Kcnip Construction and Development also points out that the specifications and notes for the 2009 project do not mention the indemnification agreement,6 and contain a separate insurance procui-t.nicnt provisiun, requiring [tlhe contractor I-toJprovide copies of liability and workillan s 5. Kenip Construction Corp. also opposes third-party plaintill s motion for a conditional ordcr of incl~n?nilicationiiiiif~~~~ti~~Ii same reasons. for the The speci liciitions and notes indicate that [tllic Construction Documents include architectural drawings Tl , l , A 1 , 1 , A2.1, A3.1, A3.2, A3.3, A4.1, the attached specifications and tablcs, and nil addctida issued prior to and during bidding (Kemp Aff., Exhibit 1, at 1). ( 3 -1s- [* 17] compensation insurance for the owners (Keinp Aff., Exhibit I at 2). Additionally, Kenip Construction and Development asserts that in 2009 it did not act in conformance with the insurance procurement provision for the 2005 pro.ject; as the liability policy that it procured in 2009 expressly Exhibit 6, excludes coverage for injuries to Kemp Construction and Development s employees (id*, at IKC D 04-9S). As noted above, Workers Conipensation Law $ 11 permits third-party claims for indemni~ication against an employer arising from the employer s injury if such third-party claims I are based iipon ; provision in a written contract entered into prior to the accident or occurrence by which [he employer had exprcssly agreed to contribution to or indemnification of the claimant or person asscrting the cause of action for the type of loss suffered. A determination of whether a mritten contract satisfics Workers Compensation Law 8 1 1 involves a two-part inquiry. First, we consider whether the parties entered into a written contract containing an indemnity provision applicablc to the site orjob where the injury giving rise to the indemnity claim took place. Second, i f bo. examine whether the indemnity provision was sufficiently particular to meet the requirements of section 1 1 (Rodrigzncs, 5 NY3d at 432). In h lorw v Lower E. Siu c. Swv. C tr., Inc. (4NY3d 363, 369-370, recrrg denied 5 NY3d 746 [ 2 0 0 5 ] ) the Court of Appeals hcld that the common-law rule - which authorizes rcview of the , c o i i r x of condiict between the parties to determine whether there was a meeting of minds sufficient to give rise to an enforceable contract - governs the validity o f a written indcrnnification agreement iinder Workers (. ompcnsation JAW 1 1 . In determining whether the parties entered into a contractual agrccnicnt and what wcre its terms, it is necessaiy to look , . , to the objective maiiifc~ta~ions thc iiitciit of the parties as gathered by their expressed words and deeds (Brown of -16- [* 18] Hros Klec C onfrs.v Brtrm C onstr Corp., 4 1 NY2d 397,399 [ 19771). The Court must consider the attendant circumstances, the situalion of the parties, and the objectives they were striving to attain (RLurnr v.4llen-Stc~v~~nson School, 82 AD3d 615, 416 [lst Dept 201 I]). I n Tiillinti I P,yrcrmid Cos (78 AD3d 1041 [2d Dept 201 O ] ) , the employee o f a subcontractor brought ii personal iii.jury action against a premises owner and contractors. The owner and contractors thcn brought a third-party action against the plaintifl s employer for contractual indemnification. The Court held that there were triable issues of fact as to whether the paflies agreed to be bound by an indernnification agreement, where a purchase order indicated that the work was to be performed pursuant t o the terms and conditions of a subcontract agreement entitled Appendix A, which contained an unsigned agreement containing an indemnification provision, and where the cmployer procured a commercial general liability policy and filed a certificate of insurance in accordance with the terms of Appendix A (id.at 1042-1043). In S luzih 1 W i//imi I% Lanu, Inc. (58 AD3d 933 [3d Dept 2009]), a general coiltractor was not entitled to summary judgment on its contractual indeninification claim against the plaintiffs employer. The general contractor s claini for indemnification was based upon an unsigned, written proposal subniittcd by the plaintifi s employer, which purported to incorporate the terms of AIA C ontrtict A40 1 . I heCourt held that [gliven the failure to provide the indemnification provision of. AIA Contract A40 1 and the absence o f any evidence that the parties agreed to that provision through eithcr past practice or their course of conduct, we conclude that questions of fact exist rcgarding whether the parties agreed to be bound by the indemnification provisions of AJA Contract A401 (id at 935). -17- [* 19] Herc, tlie Court concliides that there are triable issues o f h c t as to whether the parties agreed to bc bound bq/ the ternis of tlie iiidciiinification agreement dated November 4, 2005 for the project i II 2009 While Keriip Construction and Development asserts that there was no indernnif-ication LigrccmcntI I I 200c). f rxsidian s managing member, Jason Drattell, avers that Kemp informed him h t he w u l d iidlicre to all of the same ternis and conditions that existed at the initial build-out of tht: suite (DrattcII Aff., I10). It appears that Keinp did not provide a second AIA Standard Form of [ Agreement in 3009, he did for the biiild-out of the office suite in 2005. However, Kenip testified as a[ h i 5 clepositioii t h a t thc prc)posal submitted in 3009 was made pursuant to the AIA contracts (Kemp EB I . u t 5X-5cl). Kcnip also states that he was informed that the AIA form contract governing the 30r)5-2OOc7 construction build out contained an indeiiinificatidn provision which was not part of thc ?OOc) ngrociiient between [Kemp Construction and Ileveloprnent] and Praesidian (Kemp Aff., 7 I 8). lienip also appears to have acted in conformance with the ternis of the indemnification agreemcnt dated Nobeinher 4, 0 0 5 , because he submitted certilicates of insurance naming 41 9 Park Aveiiuc 2 South, Walter Rr Samuels, and Praesidian as additional insureds, with the same policy limits as in that agreement (Pcterseii A f l h . in Support, Exhibit G). [W]hcre a finding of whether an intent to contract is dependent ab a c ~ i i c ~ l i o n Ihct ariscs ( ~ 01 well on other evidence from which differing inferences may bc drawn, HIWA Llcc ~ ~ O W Y I ( 017/r45 , 41 NY2d at 400). Accordingly, thc motion for conditional indemnifkation, and the cross-motion for suninmy j udg I 11c I i t cl i s 11I 1L s i ng t 11 i r d-pa rty p I ai 11ti f fs co IIt ractual i ndeniizi iicat i 011 c 1ai r , must be denied (see n [At11 1 k p l 3003 I [ ~ I i c r c pl;iintiI t s employer denied that indemnilication agreement applied to contract for drugstore, but defendants asserted that it did apply, the Court held that (bjecause the -1 #- [* 20] detormiiiation of the intent of the parties depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to bc drawn from extrinsic evidence, the issue is one offact for the trier of fact and cannot be resolved as a matter of law ] [internal quotation marks omitted]). Findly. 4 19 Park Avenue South, Walter & Samuels, and Praesidian are not cntitled to a conditional ordcr of indemnification based upon third-party defendants insurer s refusal to defend thcm in this action ( A C C KMO-Realty Assoc v Podbielski, 254 AD2d 43, 44 [lst Dept 19981). CONCLUSION Accordingly, it is: ORDERED that the motion (sequence iiumber 004) of plaintiff Jose Octavio Guaman for partial simnlary judgment on the issue of liability under Labor Law 5 240( 1) against defendants 4 19 Park AVWW South Associates, LLC and Praesidia11 Capital Managenleiit 11, LLC is grantcd, with the iswe ofplaintift s damages to await the trial ofthis action; and it is further ORDERED that thc motion (sequence number 005) of dcfendantdthird-party plaintiffs 4 19 Park A V ~ I ~South Associates, LLC, Walter & Samuels, Inc. s/lz/a Walter and Samuel, Inc., and LK Pracsidian C apital Management 11, LLC for a conditional order of indemnification is denied; and it IS fllrther ORDERED that the motion (sequence number 006) of third-party defendant Keinp C onstruction Corporation is granted to the extent of granting leave to make a late motion for sumniaiy _j iidgriierit and disniissing the third-party claims for comiiion-law indemnification and contribution. :incl is otherwise dcnied; and it is further -19- [* 21] ORDERED that the cross-motion of third-party defendant Kemp Construction and Development, Inc. is granted to the extent of dismissing the third-party claims for common-law indemnification and contribution, and is otherwise denied. l he foregoing constitutes the decision and order of the Court. Courtesy copies of this decision and order are being sent to the parties. ENTER: Datccl: Scptcmher 19, 20 12 New York, New York Hon. Shlorno S. FILED OCT 17 2012 NEW YORK COUNTY CLERKS OFFICE -20-

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