Inner View, Inc. v Circle Press, Inc.

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Inner View, Inc. v Circle Press, Inc. 2012 NY Slip Op 32961(U) December 6, 2012 Sup Ct, New York County Docket Number: 601152-2010 Judge: Kathryn E. Freed 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. [* 1] SCANNEDON I211712012 SUPREME COURT OF THE STATE OF NEW YORK PRESENT: Hon. K A T H R Y N E. FREED, NEW YORK COUNTY PART Justice INNER VIEW, INC., and TZELAN, LLC., 10 -601152-2010-- INDEX NO. Plaintiffs, MOTION DATE -vCIRCLE PRESS, INC., ONE 2 ONE ON VARICK. LLC., NEXT PRINTING & DESIGN, INC., 1 800 POSTCARDS INC., and PRESS ACCESS, LLC., Defendants MOTION SEO.NQ. -004 1 TZELAN, LLC., 105764-20 11 -V- DEC 17 2012 121 VARICK STREET CORP., i i _ _ - ~ _ _ _ The following papers, numbered 1 t o 10 Notice of Motion/Order t o Show Cause Answering Affidavits 1 to/for-dismissal. Papers Numbered - Affidavits - Exhibits - Exhibits 13,(1419) 20 Replying Affidavits 21 Memo of Law Cross-Motion: 1,2. (3-12) fl Yes X No Upon the foregoing papers, it is ordered that this motion is granted Motion of Defendant Press Access, LLC., t o dismiss the instant complaint and all cross claims against it is granted. See attached DecisionlOrder attached, dated December 6, 2012 Dated: December 11, 2012 Check One: 0 FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 0 X NON-FINAL DISPOSITION REFERENCE 0 SETTLE/SUBMIT [* 2] I hSIJPREME COIJR I OF THE: STATE OF NEW YORK COUNlY OF NI<W YORK: PART IAS 10 Plaintiffs, IlECISION/OKI>ER Indcx No.: 601 152-2010 Scq. No.: 004 -against- CIRCLE PRESS, INC. ONE 2 ONF ON VAIIICK, T,L,C, NEXT PRINTING & DESIGN, INC., 1 800 IWS I CAICI)S, INC., and PRESS ACCESS, LLC, Defendants. -against- Ion. Kathryn 13. Freed J.S.C. Kccitation, as requircd by CPLR $2219[a], of the papers considcrcd in the review ofthis (thcsc) 1 1 ti on( s): 10 PAPERS NIJMBERED NOTICE OF MO I ION, AFFIDAVITS AND EXHIBITS ANNEXED ...... ORDER 10 SI-IO CAUSE AND AFFIDAVITS ANNEXED.. .............. W ANS WBRIN CT A F PI DAVITS.. ................................................................... REPLYING AFFIDAVl fS.. ....................................................................... OTHER ........ (llcl eiidants incnio of law) .................................................... .... .1-3,4-6 .... .................... ......7-8 ........ ....... 10-11.... .......9 ........... I heabovc two index numbers were consolidated by Order of Justice Judith Gische on Apri 18,20 12, for the solc purpose of joint discovery. 1 [* 3] Apri 18,2012, for the sole purpose ol-joint discovery. Def endant Press Access, LLC, under Index No. 60 1 152/20 IO, moves for an Order pursuant to CPLR $3212 dismissing the complaint and all cross-claims against it. It further inovcs for an Order granting it contractual indemiiiiication over and against defendant 1 800 Postcards, Inc. Both plaintiff and dcl cndants Circle Press, Inc., One 2 One On Varick, LLC, Next Printing & Dcsign, Inc., and 1 800 Postcards, Inc., ( hcrcinaflter collectivcly referred to as Circle Press Defendants ), oppose. Alter a rcvicw of the papcrs presented, all relevant statutes and caselaw, the Court grants defendant I ress Access s motion in its entirety. Factual Background: Hiebuilding located at 12 1 Varick Street, New York, New York is a coinmcrcial cooperative owned by 121 Varick Street Corporation, which has been traditionally occupied by printing companics. Ikf endant Onc 2 One on Variclc leases the sixth floor. Co-defendants Circle Prcss, Inc., Next Printing & Design and 1-800 Postcards sublease the space from Onc 2 One. These companies are all in tlic printing business, and as such, own and operatc printing presses. Mr. David Moyal is thc President and owner of. these various def endant companies. Plaintil f Tzclan 1,LC holds the proprietary lcasc for the fifth floor, sharing it with plaintiff liiiicr View, which opcratcs as a design company undcr the name Tony Chi & Associates. Defendant Press Access is the business of selling and installing printing machines, one of which is at issue in the instant suit and motions. Sonic time prior to October 2 1,2008, David Moyal contacted Press Access inquiring about the prospective purchase of a printcr. Upon deciding that the Heidelberg SM XL 105-5 +L rnodcl 2 [* 4] printcr, was the modcl which most acconimodated his needs, on October 2 1,2008, 1-800 Postcards and l rcss Acccss entcrcd into a contract fbr the purchasc of said printer. Press Access s sales contract contained several pertinent provisions. First, it obligatcd 1-800 Postcards to hire its own contractors to perform the necessary electrical and plunibing hookups. Additionally, it required 1800 Postcards to procurc an cngincer to perform appropriate testing in an effort to determine if the floor slab designated to house the printcr, was capable of handling its weight. This provision was of particular importance because this specilk printer weighed 1 1 1,554 pounds without piles and 1 15,280 pounds with two pilcs. Hie contract lilrther rcquircdl-800 Postcards to becoinc acquainted with, and also comply with any, existing state, inunicipal or local rules, etc., concerning the use or operation of such a device, and to comply with all construction and building regulations related to its use and maintcnaiicc. Said contract also contained an indemnity clausc, whcrcin 1 -800 Postcards agreed to iiideninify Press Access for damages caused by the printer. Subsequently, Mr. Moyal procured thc services of Ra-jiiikant Doshi, PE, of Consulting Engineers Collaborativc, Inc. Appended as Exhibit J in Press Access s inoving papers, is a letter from Mr. Doshi, dated April 1,201 1 and addressed to the Dcpartmcnl of Huildings ( DOB). It states that [rlcgarding a question raised forthe sixth floor slab for the referenced building ( 121 Varick Street, Sixth Floor Loading), based on the structural drawings prepired by Victor Mayper ArchitectlEngineer dated Fcbruary 7,1928, the cxisting second floor through eleventh tloor are designed for 200 psfsuper-imposed live load, hencc, in our opinion the existing 8-inch concrete slab is sound and capablc of supporting the static load of 180 psf. Press Access and Mr. Moyal also cntered into a scrvice agreement, wherein it was agreed that 1-800 Postcards would pcrforin daily and planned inaintcnance on the subject printer. It would also 3 [* 5] take all rcasoiitlblc steps to safeguard the Covered Equipment, and refrain from using it if it appeared dainagcd in any way. Once Press Access was assured by 1-800 Postcards that the sixth floor slab could support the static-floor load for said printer, Press Access proceeded with its installation. 1-800 Postcards subsequently inspected and approved thc installation, and never made any complaints regarding the piinter s performance. Additionally, subsequent visits by Press Access teclinicians involvcd only routine maintenance, and not any signiiicant repair work. I n his affidavit, Mr. Moyal avers that the intention of the parties in entering into tlic indemnification clause was solely to protect Press Access if Postcards negligently opcratcd thc Sub.ject Press and caused harm to third-parties ......There was no iiitcntion bctwcen the parties for 1 800 Postcards, Inc. to indenmi fy Press Access for improper installation or for damage to the building if Press Access misrepresented the suitability of the Subject Press for the spacc. Moyal Aff. 1 29. 1 I he DOI3 subsequently issucd two violations to the building owncr, with regard to the printing press. While i t is not clear what event(s) transpired leading up to tlicsc complaints, the DOB ultimately dismisscd the complaints. On May 10, 201 1, plaintiffs sued Circle Press, One 2 One on Varick, Next Printing & Design and 1-800 Postcards and Press Access, claiming that Press Access s improper installation of the printer caused electrical fires, cracks, falling concrete, toxic chemical leaks and vibrations whicli jeopardized the safety of the entirc building. Plaintiff liincr View requested in-iunctive relief seeking to enjoin 1-800 Postcards from operating its printcrs and to orclcr their removal from the sixth floor, claiming that the installation, operation and maintenance of the presscs constituted a nuisance. Prcss Access served its Answer denying these allegations and asserting a cross-claim against 1-800 Postcards for indemnification. Howcvcr, it respondcd to discovery demands, producing all documents rclcvant to the sale, 4 [* 6] installation and maintenance of the subject printer. PlaintilT I zc1an coiiinienced a separate action against 121 Varick Street Corp. Circle Prcss, One 2 One, Next Printing, and 1-800 Postcards moved to consolidate the actions because Mr. Moyal was the president of all of these respective entities. Said motion was granted to the extent that the actions were joined for discovery. Subsequently, the parties entered into a stipulation wherein once Press Access moved for suniinary judgment, all discovery relative to it would be stayed as to the other jnartics. Positions of thc sartics: I rcss Acccss argucs that no negligcncc can be attributed to it bccausc it owcs 110 duty ol carc to any of the parties, in that it did not own, control, maintain or possess any portion ofthe building, nor did it create any dangerous condition therein. Press Acccss also argucs that the indemnification clause clearly requires 1-800 Postcards to defend and indemnily it for damages akin to the coniplaiiits alleged by plaintiff. Plaintiffs, via the affidavit of Tammy Cliou, an officer and member of plaintiff Tzelan, argue that once dcrendants provide discovery, the static load ol tlic printer will be identified to be greater than 178.6 pcr squarc foot. She argues that suinniary judgmcnt should be dcnied because thcrc exists a genuine issue of inaterial fact as to the live load exertcd by the sub-jcctprinting press. She asserts that this is so because in that the Heidclberg priiiting press is an clectric ally-powered inachinc, its static load is irrelevant. Chou goes on to explain the diff crcnces between a static load and a live load. She also asserts that the floor weight excrted by a machine with moving parts constituted a live load, .....thus, becausc ( the building s Certificatc of Occupancy fixes the live load for the entirc building, thc static load ofniachinery on the sixth lloor, whatever it may be, is not 5 [* 7] rclcvant to this action or this motio11.~ Whilc plaintiff-s papers contain convoluted percentages and poundage per square foot, Chou argues that the press excccds the weight limit by either 12% or 33%. Therefore, the installation of the Hcidelberg Press could lead to catastrophic collapse ofthe sixth floor into the fifth floor ...and possibly ... the ciitirc building, and excusing Press Access from the action will insulate it from the horrific risk it created. It is important to note that Chou does not explain where she obtained tlicse percentages and poundages. Circlc Press Dclkndants allcge that plaintiffs haw chronically refuscd to inspect the 6 Floor, which is thc main reason why thcy have not yet filcd thcir own motion for summary ~judgmcnt. I hcy acciise plaintiffs ofconsistently f ailing to inspect the sixth floor in willful disregard of prcvious prcliiiiinary confcrence orders, So-Ordered by Hon. Judith Gische on February 24,20 1 1. To date, since no inspection has ever been conducted by plaintiffs, dekndants now urge this Court to throw out plaintiffs fr ivo I 011s claims . Additionally, Circle Press defendants argue that plaintiffs have M c d to proffer any offer of proof concerning the alleged hazardous conditions caused by the printer, and also how these conditions amount to a nuisance under the law. Circle Press defendants also argue that Press Access citcs no Alabama law, whatsoever, lor its position that it is entitled to contractual indcrnnification, I hey refer to and rcly on a particular statement contained in the contract which provides THIS CONTRACT SI-IAI,I, BE GOVERNED AND ENFORCED BY THE LAWS OF THE STATE OF ALABAMA. l hc subject indemnity clause states: 6 [* 8] Ruyer is responsible to provide a safc workplace and facility for employees and third parties. To the extcnt that persoiial injury or property damage occurs as a result of the Buyer s failure to operatc or maintain the. workplace or the equipmciit i n accordance with all applicable safety laws, rules, and regulations, industry standards, Sellcr s instructions and recommcnded methods and proccdurcs or as a rcsult of the change, removal or defeat of guards, safety devices or software provided by thc Scller, Huyer will dcfeiid and indemnify Seller froin all liability, claims, costs or damages arising thcrc lkom. Scllcr claims any right of indemnification for losses caused by abuse or misuse of the equipment established by applicable law. Conclusions ol law: I he draslic rcinedy of suminary judgnicnt should be granted only where thcre are no triable issues o f h c t ( Chemical Bank v. West 19ShStreet Development Corn., 161 A.D.2d 21 8 [lstDept. 19901; I earson v. Dix McEride, LLC, 63 A.I).3d 895 [2d Dept. 2000] ), or where the issue is arguable or dcbatable ( Stow v. Goodson, 8 N.Y.2d 8 [1960] ). In ordcr to prevail 011 a summary judgment motion, thc movant must make a prima facie showing of entitlement to judgment as a mattcr ol law, tlirough adiiiissiblc evidence, eliininating all material issucs of fact ( Alvarez v. Prosucct IIospital, 68 N.Y .2d 320 [ 19861 ). Once the movant demonstrates entitlement to judgrncnt, the burden then shifts to the opponent to rebut the prima Facie showing ( Rcthlehem Steel Corp. v. Solow -51 N.Y.2d 870, 872 [1989] ). 3 - In thc instant case, the Court finds neither plaintiff nor the Circle Press Defendants have submitted any cvidcntiary proof in admissible form that unequivocally establishes a prima facie case olnegligcncc against Press Access. I hecause of action of negligence requires a party to demonstrate a duty owed to it by defmdant; a breach thereoc and injury or damage proximately resulting therefrom (see Derdiarian v. Felix Constr.COm., 51 N.Y.2d 308 [1980]; Murrav v. New York City 1 lousing hut11.,269 A.D.2d 288 [ 1 Dept. 20001 ). 7 [* 9] In consideration of this, it is clear that plaintiffs have failed to present even a scintilla of cvidcnce which provcs that the alleged dangerous conditions even exist, let alone that they arc thc dircct rcsult of Press ACCCSS S alleged improper installation of the printer. Whilc Prcss Access supported its motion with physical documentation, plaintiff failed to specifically addrcss this evidentiary rccord. In opposing a summary judgment motion, the party must lay bare its evidentiary proof. Mere conclusory asscrtions, devoid ofevidentiary facts, arc insufliicient for this purpose, as is rcliancc upcm surmise, coii+jecture, spcculation ( Morgan v. New Yorlc Telephonc, 220 A.I>.2d or 728, 729 [2d Dept. 19951; Zuckerman v. City ofNew York, 49 N.Y.557, 562 [ 19801 ), lndced, in her affidavit, Tainiiiy Chou confusingly addresses the alleged diffcrcnce between livc and static loads. Howcvcr, she fails to indicate with any seiiiblaiicc of certainty, how she arrivcd at her calculatioll/col7clusions, and if she even possesses thc rcquisite expertise to render them. Morcovcr, stateiiients emanating from both plaintiffs aiid Circle Prcss Defendants have succeeded i n undermining their rcspective positions, ic, [plrcss Access s installation could cause collapse ofthe entire building incidents (see Ranker aff.1[5); [tlo be clear, Circle Press Defendants bclieve the facts irrcliitably denionstratc that there is no problem with the Subject Press installation or load in thc building ( SCC Circle Press Defendants Memo of Law 1[fT ). 9 Press Access has submitted adiiiissiblc evidence of its lnck of negligence in the form of the Consulting Engineers Collaborative aiid the DOB. The DOB investigatcd tlie coinplaints and found that the printing prcss posed no danger and fit in with the inaiiufacturing allowability. The disposition ofthe DOB, clearly states ENGINEERS REPORT SURMI ITBD & PRINTING PRESS DOES NO I EXCEED 1 , I W LOADS FOR FLOOR, INSPECTED WITH FEU TIM LYNCH. It appears that plaintiff s never contested or appealed thc DOB s decision. As such, they are no longcr 8 [* 10] able to do so bccause as a general rulc, the doctrines ofrcs judicata and collateral estoppel apply to quasi-judicial determinations ofadininistrative agencies (see Ryan v. New York Tcl. Co., 62 N.Y.241 494,499 [19841 ). Plaintifr s fiirthcr argument that Prcss Access s motion should be denied bccause outstanding discovery cxists, is belied by Exhibit D, which is appcndcd to Press Access s motion. Exhibit 11 is a So-Ordered stipulation wherein it is agreed that all parties will serve responses to outstanding discovcry requests within 45 days. The parties further agreed to complctc all depositions within 60 days ofFebruary 16,2012. Finally, thc parties agreed that once Press Access inovcd for summary judgment, all discovery relative to it would be stayed as to all other parties. The Court also finds Circle Press DeTendanls argument against the application of thc indemnity clause, to be unavailing, and contradictory. They argue that thc intcntion of the parties in cntcring into tlic indeinnification clause was to protect Prcss Access from Circlc Press Defendants negligence ( Moyal Affidavit 7 29), not to protect Press Access from damages arising out of a shoddy or otherwisc incorrcct installation or Press Access own iiiisrcprcsentatiois. l liis stateincnt is disingenuous and patently ridiculous, in light of Circle Press Defendants previous statenlent that they bclicvc that there was nothing wrong with the printer or the method and procedures Press Access utilized in its installation. Additionally, the Court finds Circle Press Defendants argumcnt that thc application of Alabama law invalidates the instant indcinnity clause to also be unavailing. They cite several cases emanating h i i i the Alabama Suprenie Court, which ubiquitously stand for the general, common law proposition that when determining the validity of an indemnity clause, the requisite intent of the parties must be clear and unambiguous. Tontracts will not be construed to indemnify a person 9 [* 11] against his [or hcrl own ncgligence unless such intention is exprcssed in uncquivocal terms ( Kurelc v. Port Chcsler I-lous. Auth., 18 N.Y.2d450, 456 [1966]; Sherry v. Wal-Mart Stores, E., L.P., 67 A.l).?d 992 L2d l k p t . 20091 ). When the intent is clcar, an iiidcinnification agreement will be cnforced even if it providcs indemnity for one s own or a third party s negligence ( Rradlev v. Earl ¬3. Fciden, Inc., 8 N.Y.3d 265, 275 [2007] ). Indemnification rcquircs proof not only that the proposed indemnitor s negligcncc contributed to the causation ofthc acciclent, but also that the party seeking indcninity was lice from negligciice (see Correia v. Professional Data Mgt., 259 A.D.2d 60, 65 [ l Uept. 19991; Martins v. 1,ittle 40 Worth Assoc. Inc., 72 A.D.3d 483 [l Dept. 20101 ). I lierefore, the Court finds that Press Access s request fbr contractual indcmnifkation is rendered moot in that it is hereby OKDERED that defendant Prcss Access s motion is grantcd in that the instant complaint and all cross-claims against it are dismissed and it is further O I ~ I ~ E lthatl the Clerk of the Court entcr judgment accordingly and it is further ~ ~I~ ORDERFI) that this constitutes the dccision and ordcr of the Court. DAI l3D: Ilcccmber 6, 20 12 -. J.S.C. ; 10

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