Dreyfus v MPCC Corp.

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Dreyfus v MPCC Corp. 2012 NY Slip Op 33129(U) December 28, 2012 Sup Ct, Suffolk County Docket Number: 10-5114 Judge: Daniel Martin 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] INDEX NO. 10-5 1 14 CAL NO. 12-0070OOT SUPREME COURT - STATE OF NEW YORK I.A.S. PART 9 - SUFFOLK COUNTY PRESENl: 14011. DANIEL MARTIN - . iistice of the Supreme Court I MOTION DATE 6-26-13 (#003) MOTION DATE 7-3 1 - 12 (#004) ADJ. DATE 9-4- 12 Mot. Seq. # 003 - MD # 004 - MotD ----x CORY DKEYFUS and LAURA DREYFUS, Plain tiffs, - against SACKS & SACKS Attorney foi- Plaintiffs 150 Broadway New York, New York 10038 - CATALAN0 GALLARDO & PETROPOULOS Attorney for Defendant 100 Jericho Quadrangle Suite 214 Jericho, New York 11753 MPCC CORP. MPCC CORP.. Third-Party Plaintiff, - against - CANATAL INDUSTRIES, INC., Third-Party Defendant C A N.4TiIL I NDlJSTRI ES, INC., Second Third-party Plaintiff, - against - B & K lRON WORKS. INC., Second Third-Party Defendant. BRAFF, HARRIS & SUKONECK At t oniey for Third -Part y De fend ant C a iiata1 305 Broadway, 7th Floor New York, New York 10028 [* 2] Iipoii the t ollo\~~ng papei-s niimbered 1 to 55 read 011 this motion and cIoss moticiii fbr s u i i i m a r ~ jtidqment .; Notice of Motion O r c k i - to Sho\v Cause and supporting papers 1 - 13 : Notice of Cross Motion and supporting papers 14 - 30 : .lnsi\cIing ,Il iida\ its and siipportiiig papers 3 1 -32: 33 - 40:41 -44: - 46 : Replying Affidavits and suppoi-tiiig p a p i x 3745 i s : -lo - 50:5 1 - 53: 54 - 55 : Other -: ( ) it is. 5 ORDERED that the motion by third-party defendant Canatal Industnes, lnc tbr, inter alia, summ,ii-y 1 ticigmcnt dismissing the third-party complaint against it is granted to the extent indicated Iici-an. and is othei-n ise denied, and it I S fiirther ORDERED that the motion by defenda~it/tliird-parlyplaintiff MPCC Corp. for siimmary j iidgment dismissing the coiiiplaiiit and all cross claims against it is denied. Plaintiff Cory Dreyfus commenced this action to recover damages for personal i i i j iii-ies he allegedly sustained on January 7, 2010, when he slipped on ice and injured his back while working at the constriiction sitc of the Academic Building of the Old Westbiiry College. Plaintiff allegedly slipped 011 ice that formed i n tlie ruts and ridges of the uneven surface of the ground at the construction site. Old Westbiiry C ollege is owned by the State University of New York ( SUNY ), which hired defendaiit MPCC Corp its the general contractor for the construction project. MPCC was responsible for hirmg \ arioiis subcontractors to complete tlie project, iiicl~tdiiig Canatal Industries, Inc. ( Canatal ), the steel I-abncator for the project. At the time of tlie alleged accident, plaintiff was an employee of B&K Iron Works. Inc. ( B&K ), a sub-subcontractor hired by Caiiatal to perform various structural steel work on tlie new building. Plaintiff alleges causes of action against MPCC for common law negligence and for violation of Labor Law $ $ 200, 240 ( I ) , and 241(6). The complaint also asserts a claim by plaintiff s wi fe, Laura Dreyfw, for loss of services and reimbursement of medical expenses. Following the comme~iceinentof plaintiffs action, MPCC brought a third-party action against Can ital for common law and contractual indemnification, contribution, and breach of contract based iipon Canatd s alleged failure to obtain liability insurance naming MPCC as an additional insured. Siibseqiieiitly. Canatal coininenced a second third-party action against B&K alleging identical causes of action. Shortly thereafter, MPCC served a notice asserting similar cross claiins against B&K. 0 1April 1 12. 20 1 1, SUNY conimenced a separate action under Index No. 12282/11 against MPCC, Cauatal and B&I< for ~ndemnilicatio~i, contribution, and breach of contract. By order of this Court dated October 12, 2 0 1 I , the actions were joined for the purposes of discovery aiid trial only. The Court fiii-ther granted scprir,itc motions hy SUNY aiid Canatal for entry of ajudgment of default against B&I< who fdiled to appeal I l l elthe1 lctlon. Canatal iio~\moves for summary j iidgment dismissing the fii-st-party and third-party claims asserted against it by SUNY and MPCC. Canatal argues that it cannot be held liable to either party for conti-ibution or indemnification, as it was not an owner, general contractor or statutory agent, and d1.d not control or stipcr\,ise the injured plaintiff s lvork or the safety procedures of his employer at the time of the alleged accident. Canatal also argues that any claims against it premised on its alleged failure to pi-ocure liability insurance on behalf of MPCC and SUNY must be dismissed, since it fulfilled its contractual obligation to procure insurance naming both parties as additional insureds. MPCC opposes tlie motion mci cross-iiio\ es for suniiiiary judgment i n its favor on the third-party complaint, aiguing that [* 3] C an,ital u JS conti actually required to indemnify i t for any a i d all cla~rns arising out of, or i n connection \I ith its M orh at the construction site. MPCC also seeks summary jiidgiiient dismissing tlie Dreyfiis complaint on thc youncis it fails to state viable causes of action under the common la\v or sections 200, 230( 1 ) and 23 1 (0) the Labor Law. of It I S well settled that on a motion for siiiiiiiiary jiidgiiieiit the function of the court is to deteriiiine \vliether issues of fiict exist and not to resolve I S S L I ~of fact or detei-niine matters of credibility (sec S Doi,:e Holiday Iiiii Ronkonkonza, 6 AD3d 573, 574, 774 NYS2d 792 [2d Dept 20041). Furthennore, facts that we alleged by the nonmoving party and all inferences wliich may be drawn from them must be accepted 21s true (see O Neill v Town of Fislzkill, 134 AD2d 487, 488, 521 NYS2d 272 [2d Dept 19871). The proponent of a summary j udgiiient niotioii must make a prima facie showing of entitlenient to iidginent as a matter of law, tenderiiig sufficient evidence to eliniiiiate any material issue of fact (sec Alvcirr,: v Prospect Hosy., 68 NY2d 320, 508 NYS2d 923 [ 19861; Wiizegrad v New York Uiiiv. Mecl. Ctr., 63 NJ 2d 851, 487 NYS2d 316 [1985]; Aizdre VPonieroy, 35 NY2d 361, 362 NYS2d 131 [1074]). The failure to make such a prima facie showiiig requires the denial of the motion regardless of the sufticiency of the opposing papers (see Wiizegrad v New York Uni. Med. Ctr., 64 NY2d 85 1, 487 NYS2d 3 I O [ 19851). Initially, the Court notes that Labor Law $240 (1 ) is inapplicable under the circumstances of this case. as it is undisputed that the subject accident, which occurred as a result of a ground level slipping lia7ard, I S not among the type of perils Labor Law $240 (1) was designed to prevent (see Speizce v Islaizrl Estrites at Mt. Sinai 11, LLC, 79 AD3d 936, 914 NYS2d 203 [2d Dept 20101; Favreau vBizrrzett & Barrzett, LLC, 47 AD3d 996, 849 NYS2d 691 [3d Dept 20081). Therefore, the branch ofMPCC s motion seeking sunimary judgment dismissing plaintiffs claiiii under Labor Law $240( 1) is granted. MPCC failed, however, to establish its entitleiiieiit to summary judgment dismissing plaintiffs claim under Labor Law $241(6). Plaintiffs iiiitial failure to identify tlie violatioil of a particular code in his complaint or original bill of particulars need not be fatal to his claim, as plaintiffs 1 1 0 ~ submit an amended bill of particulars specifying tlie alleged violation of 12 NYCRR $ 23-1.7(b) (sce eg Noet:ell v Park Ave. HaIIHoiis. Dev. Fund Corp., 271 AD2d 231, 705 NYS2d 577 [3d Dept 20001) Fui-thci-,inasmuch as 12 NYCRR 8 23-1.7(b) proscribes slipping hazards by requiring the removal of, among other things, snoM and ice fioni walkways or passageways utilized at construction sites, p l a i n t i Ilk submission of evidence that tlie open area where plaintiff fell was routincly traversed by H&G s employees as they walked from their work area to the shed where their tools and cquipmeni we1-c stoi-cd, r iiscs a triable issue as to wlietlier the area constituted a wallway, and if so, whether tlie fai lure to rcnio\ e siio\\ and ice from tlie area u as a violation of the code (see S i d I i v ~ v RGS E~zergy ~i Groirp, Iiic.. 7s AD3d 1503, 1503, 910 NYS2d 776 [2010]; Sinitli vHiizes GS Props., Iiic., 29 AD3d 433, 815 bl S2d 82 I 1 st Dept 20061; coiiipnr-e Bailer v Niagra Molrciwk Power Cory., 249 AD2d 948, 672 Nh S2d 567 [4th Dept 19981). pro\ ision MP(s C siiiiilcirl>failed to establish. as a matter of laif. its cntitlemeiit to suiiiniary j u d ~ m e n t disiiiisyiiig p1,iiiitiffs claim under section 200 oftlie Labor L a n Laboi- La\%$200 IS a codilication of tlie coniiiioii-lciu dut) iiiiposed upon an owner or general contractor to pro\ ide consti-uction site orhei-s [* 4] a safc place to work (see Corms v New York Stclte Elec. & Gas Cory., 82 NY2d 876, 009 NYS2d 168 [ l903]; Huirlcr v Davis, 35 AD3d 363, 827 NYS2d 179 [2d Dept 20061). Where a plaintiffs iiijtiries stem not from tlie nianner i n which tlie work was being performed, but, rather, from a dangerous cond~tion the premises, an owner or contractor may be held liable in common-law negligence and 011 under Labor La\\ $200 i f they liad control ovei- the work site and either created tlie dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident ( A z d v 270 Realty Cory., 46 AD3d 728, 730, 848 NYS2d 688 [2d Dept 20071; see Rirssiii v Loiris N. Piccrido & Soil, 54 NY2d 31 1 , 445 NYS2d 127 [1981]; Ortega v Puccia, 57 AD3d 54, 866 NYS2cl 323 [2d Dept 20081; Choiutllzury v Rodriguez, 57 AD3d 121, 128, 867 NYS2d 123 [2d Dept 20081; Kelioe v Sogal, 272 AD2d 583, 709 NYS2d 817 [2d Dept 20001). with Het-c, L ieniiig the evidence in the light most favorable to plaintiffs, triable issues exist as to whether MPCC created or had actual or constructive notice of tlie alleged dangerous condition that ; caused plaintiffs accident (see Wiizegrad v New York Uiziv. Med. Ctr., s z ~ p mAizrlre v Poiiieroy, s u p i ) Significantly, MPCC does not dispute that its was responsible for tlie removal of snow or ice fi-om the worltsite. and that its heavy equipment created ruts when it was used to transport building materials to different parts of the unfinished building. Moreover, plaintiffs submitted evidence that plaintiff and non-party witness Pat Ging repeatedly made complaints to MPCC s representatives regarding the treacherous conditions caused by tlie presence of ruts and the accumulation of snow and ice at the worksite. MPCC also failed to submit any evidence that the accumulation of ice and snow occurred so close in time to the accident that it could not reasonably have been expected to notice and remedy the condition (see Scrllivaii v RGS Energy Group, Iirc., supva; Baiiizister v LPCiiiiiiielli, Iizc., 93 AD3d 1294, 940 NYS2d 749 [4th Dept 20121). Therefore, the branch of the motion by MPCC for summary judgment dismissing plaintiffs claim under Labor Law 5200 is denied. With regard to the branch of MPCC s motion for judgnient in its favor over and against Canatal o n Its third-party claims for contractual or coininon law indemnification, the existence of triable issues as to whether MPCC s negligence, if any, caused or created tlie alleged dangerous condition precludes any judgment i n its favor on those claims at this juncture (sec McAllister v Coitstructioit Coiisultants L.I. Iiic., S? AD3d 1013, 921 NYS2d 556 [2d Dept 201 11; Martiiiez v City ofNew York, 73 AD3d 993, 901 NYS2d 339 [2d Dept 20101; Ericksorz v CrossReady MLY, Iizc., 75 AD3d 519, 906 NYS2d 284 [2d Dept 20 101) [A] party seeking contractual indemnification must prove itself free froin negligence, becausc to the extent its negligence contributed to the accident, it cannot be indemnified therefor (Cava Coiistr. Co.. Irrc. v Cealtec Reiizodeliizg Cory., 58 AD3d 660, 662, 871 NYS2d 654 [2d Dept 20091, citing Geiiei-al Obligations Lam 8 5-322.1). 4s fot Cmatal s motion for suiiimai-yjLidgnieiitdismissing the third-p,irty compldliit, the iiidemnific,ition clmse contained i n Canatal s contract n it11 MPCC, requiring, among other things, that ( andtal indemnifq MPCC for any and all liability arising out of or in connection with the work \\ licthei such liability be tlie result of the alleged active or passn e negligence of the Onnei or Contractoi. IS \ oid and unenforceable under General Obligations Law Q 5 - 3 2 1 ( ~ c Kiiirzey ~ L i s h e Co.. 76 NJ 2d 215, 557 NYS2d 283 [1990], Itri Brick & Coiicrete Corp. v Aetira Cas. & Sur. Co., 89 [* 5] NY?d 780. 6 5 s NYS2d 903 [l997]; Cava Coizstr. Co., Iizc. Gecrltec Rernocleliiig C o p , s i i p m ; I<eyiolr/s I Coiriify o Westchester, 270 AD2d 473, 704 NYS2d 65 1 [2d Dept 20001). Thus, MPCC s f t l i i r d - p ~ r tc~ lain1 for contractual indemnification against Caiiatal fails as a matter of law, and is cl15 111ssc d 1 $1 C an a t a1 ;I 1so cst ab I I shed, pr t ma h c t e, 1t s etit t t 1ein en t to s iininiary j LI dgm et i t d i sin t ss 1ng the th 1rdparty clatni ,igainst i t for breach of contract based upon its alleged failure to procure insurance naming MPCC as ,111 additional insured by submitting a copy of the iiisurance certificate which names MPC C as f an ~dditional insured (see Vick v Amevicriiz Re-Fuel Co. o Niagara, 283 AD2d 91 5 , 723 NYS2d 781 [4th Dept 20011; Martiizez v Tishrrzaiz Coizstr. Cory., 227 AD2d 298, 642 NYS2d 675 [ 1 st Dept 19961; Grircia I Great Atl. & Pac. Tea Co., 231 AD2d 401, 647 NYS2d 2 [lst Dept 19961). MPCC, which did not address this branch of Caiiatal s motion, failed to raise a triable issue in opposition. Therefore, the branch of Cdnatal s inotioii for siiininary judgment dismissing the third-party claim against it for breach of contract is granted. Caiiatal fiirther established its entitlement to sumniary judgment disinissiiig the third-party claims against i t for contribution and/or coninion law indemnification by demonstrating that it was not actively negligent in causing the accident, since it did not have control over the worksite, and did not create or have actual or constructive notice of the alleged defective condition (see Guiizter v I. Park Success, LLC, 67 AD31 406, 886 NYS2d 880 [ 1 st Dept 2009];Yoizdtv Rlvd. Mall Co., 306 AD2d 882, 760 NYS2d 914 [4th Dept 20031; Martiizez v Tishnzaii Coizstr. Coi.p., sup-a;see also DiMarco vNew York City Hcaltli & Hosps. Cory., 187 AD2d 479, 480, 589 NYS2d 580 [2d Dept 1992)). The adduced evidence indicates that Caiiatal did not have control over the worksite, and was not responsible for ilie removal or snow or ice, or the general maintenance of the grounds. Canatal also submitted evidence that none of its representatives were present at the worksite on the day of the accident, and that it did not exercise any actual control over plaintiffs work or receive any complaints regarding the presence of unsafe ruts and the accuinulation of snow or ice therein. In opposition, MPCC s mere assertion thai. Canatal s representative was dispatched to monitor the progress of the work, and that its dissatisfacl ion with B&G s perforinance caused it to terminate B&G s services, is insufficient for the purposes of cstablishing Canatd s liability under the coininon law or Labor Law $$200 and 241(6) (see Perri v Gilbert Johiisoii Eiiters. Ltd., 14 AD3d 68 1 , 790 NYS2d 25 [2d Dept 20051; Dos Saiztos v STV Eiigrs.. Iiic.. 8 .4D3J 223, 778 NYS2d 48 [2d Dept 20041). Accordingly, the branch of Canatal s motion for s LI m m ary j ud gin et i t di sini ss ing the tli i rd-part y coniplai i i t agai list it i s granted . HOM er. the branch of Canatal s motion for suniinary judgment dismissing SLJNY scomplaint e\ and related cross claims against i t is denied. Inasmuch as the actio1 heen joined for discovcry and trial only, Canatal s application has - I N A L DISPOSITION F X NON-FI1AL$ISPOSITIOR a 4 %

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