Arias v Beauce Atlas Steel Fabricator

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Arias v Beauce Atlas Steel Fabricator 2017 NY Slip Op 32783(U) December 6, 2017 Supreme Court, Bronx County Docket Number: 304955/08 Judge: Ben R. Barbato Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ---------------------------------------x HENRY ARIAS, DECISION AND ORDER Plaintiff (s), Index No: 304955/08 - against BEAUCE ATLAS STEEL FABRICATOR, B&R STEEL LLC, JEM CONTRACTING, JM3 CONSTRUCTION, LLC, STONELEDGE SCAFFOLDING COMPANY LLC, THE J CONSTRUCTION COMPANY LLC, BANNER AVENUE LLC AND TIEGRE MECHANICAL CORP., ~ Defendant(s). ----------------------------------------x THE J CONSTRUCTION COMPANY LLC, BANNER AVENUE LLC AND TIEGRE MECHANICAL CORP., Third-Party Index No: 83891/09 Third-Party Plaintiff(s), - against BEAUCE ATLAS STEEL FABRICATOR AND B&R STEEL LLC, Third-Party Defendant(s). ----------------------------------------x In this action for personal injuries arising from, inter alia, violations of Labor Law §200, § 240(1), (2), and § 241(6), defendant/third-party defendant B&R STEEL, LLC (B&R) moves seeking an order rearguing portions of this Court's dated May 11, 2017. Decision and Order Specifically, B&R seeks to have the Court (1) strike the portion of the Court's prior decision and order which held that plaintiff's accident arose solely from the means and Page 1 of 11 [* 2] methods employed by B&R as it is inconsistent with the record; (2) reverse the portion of the prior decision and order which granted defendants/third-party plaintiffs THE J CONSTRUCTION COMPANY LLC (J Construction) and BANNER AVENUE LLC' s (Banner) motion seeking summary judgment on their cross-claim against B&R for common law indemnification on grounds that the record is bereft of evidence that plaintiff suffered a grave injury; the prior decision and order which Banner summary judgment with ( 3) limit the portion of granted J respect to Construction and their contractual indemnification claim against B&R to the terms of the relevant agreement; and extent denied it ( 4) reverse its prior decision and order to the B&R' s cross-motion for regard to all claims asserted against it. summary judgment with Plaintiff opposes B&R's motion to the extent B&R seeks to have the Court grant it summary judgment plaintiff on all claims contends that asserted the Court against B&R failed summary judgment. to Significantly, properly denied cross-motion upon concluding that B&R, liability, it. B&R' s prior in failing to negate its establish prima facie entitlement to Defendant/third-party defendant BEAUCE ATLAS STEEL FABRICATOR (Beauce) and defendant JEM Contracting Corp. (JEM) oppose B&R's motion insofar as it seeks to have the Court strike its holding that plaintiff's accident arose solely from the means and methods employed by B&R since it is clear that at the time of the instant accident, plaintiff was performing B&R's work at B&R's Page 2 of 11 [* 3] direction. For the reasons that follow hereinafter, the instant motion is granted, in part. The instant action is for alleged personal injuries arising from, inter alia, alleged violations of the Labor Law. A review of plaintiff's second supplemental complaint establishes, in relevant part, the following: premises located plaintiff at sustained plaintiff, an On February 8, 1121 injury. employee involved in an accident. maintained 1121, Banner that of 2008, Avenue, while working within New Specifically, BARONE STEEL York, it is NY (1121), alleged FABRICATORS, that INC., was It is alleged that defendants owned and they were general contractors for a construction project occurring thereat and that they violated Labor Law §§ 200, 240 (1) and (2), and 241 (6); said violation causing plaintiff's accident and the injuries resulting therefrom. Within the third-party complaint, allege that plaintiff's in connection complaint, they with Banner and J Construction the retained project Beauce to identified perform in work thereat, that Beauce then retained B&R Steel, LLC (B&R) to perform part of that work, that B&R was plaintiff's employer, and that B&R directed and controlled plaintiff's work. Based on the foregoing, Banner and J Construction interpose several causes of action for contribution and contractual indemnification against Beauce and B&R. Page 3 of 11 [* 4] To the extent relevant, on May 11, 2017, upon Banner and J Construction's motion seeking summary judgment with respect to plaintiff's direct claims sounding in common law negligence and a violation of Labor Law § 200, and J Construction and Banner's motion for summary judgment on their cross-clams against B&R for contractual and common law indemnification, the Court granted the same holding that Banner and J Construction's motion for summary judgment is granted, in part. With respect to plaintiff's common law and Labor Law § 200 claim, they establish entitlement to summary judgment by tendering evidence which demonstrates that plaintiff's accident arose solely from the means and methods employed by B&R, which neither Banner nor J Construction controlled. With respect to Banner and J Construction's claims seeking contractual indemnification from Beauce, JEM and B&R, movants establish entitlement to summary judgment and an order of conditional indemnification inasmuch as the evidence tendered establishes the absence of any active negligence by movants and the existence of clauses requiring indemnification in the relevant agreements. In denying B&R's cross-motion seeking summary judgment with respect to all claims asserted against it 1 , the Court stated that B&R's motion seeking dismissal of all claims 1 While the Court's prior decision only discussed dismissal of the cross-claims asserted against B&R by the other defendants, and should have discussed dismissal of any direct claims asserted by plaintiff against B&R, no party has noted the foregoing omission. In any event, B&R's motion seeking dismissal of any direct claims asserted by plaintiff against it would have been denied for the very same reasons the Court denied its motion seeking dismissal of all cross-claims asserted against it. Page 4 of 11 [* 5] for contribution and indemnification asserted against it is denied. Significantly, because B&R directed and controlled plaintiff's work at the time of this accident and because the record is bereft of any evidence regarding the cause of plaintiff's fall, B&R fails to negate its liability. As such, it fails to establish prima facie entitlement to summary judgment. B&R's motion seeking reargument of this Court's prior decision and order is granted, in part. to the extent of modifying Specifically, reargument is granted the language of the Court's decision and order so as to omit the word "solely.u prior Indeed, while it is clear that based on the record, the instant accident arose while plaini tff control, the performed instant work accident for B&R could have at its also direction arisen and from the failure of the scaffold at issue, which the record indicates could have been placed at the instant location by JEM. Reargument is also granted to the extent of limiting the grant of J Construction and Banner's motion for contractual indemnification to the terms of the relevant agreement, which only requires that B&R indemnify J Construction and Banner to the extent and to the degree of B&R's negligence, if any. CPLR § 2221 (d) (1), authorizes the reargument decision on the merits and states that such motion shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion. Page 5 of 11 of a prior [* 6] Accordingly, [a] motion for reargument, addressed to the discretion of the Court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principal of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided 68 AD2d 558, 567 [1st Dept 1979]; see also, Fosdick (Foley v Roche, v Town of Transp., Hemstead, Inc., 126 NY 117 AD3d 939, 651, 652 [1891]; Vaughn 939 [2d Dept 2014]). v Veolia Thus, because reargument is not a vehicle by which a party can get a second bite at the same apple, a motion for reargument preludes a litigant from advancing new arguments or taking new positions which were not previously raised in the original motion (Foley at 567). A motion to reargue, must be made within 30 days after service of a copy of the underlying order with notice of entry 2221 [d] [3]; Perez Pearson v Goord, v Davis, 8 AD3d 1086, 1087 (CPLR § [4th Dept 2004]; 290 AD2d 910, 910 [3rd Dept 2002]). Here, a review of the Court's prior decision establishes that it erred in characterizing B&R' s means and methods as the sole reason for plaintiff's accident. To be sure, the foregoing characterization was made solely in relation to J Construction and Banner's motion seeking dismissal of plaintiff's Labor Law§ 200 claim and was meant as a reference to prevailing law which proscribes liability under Labor Law § 200 to an owner and general Page 6 of 11 [* 7] contractor when, as here, the same neither controls nor directs the work and when the employed by the accident arises contractor. To from be the sure, means where and methods the defect or dangerous condition arises from a sub contractor's methods and the owner or general contractor exercises no control or supervision over the activity at issue, the owner and general contractor will not be liable under Labor Law §200, even if the same had notice of (Comes v New York State the sub-contractor's defective methods Eelectric and Gas Corporation, Cloutier Construction Corp., 82 NY2d 876, 4 4 NY2d 2 90, 877 299 [1993]; Allen v [ 197 8] . Stated differently, with respect to the sub-contractor's improper methods or the use of defective materials, liability is only established when the owner has maintained the ability to control the work giving rise to the injury or has actually exercised supervision or control of the same (Allen at 299). Nevertheless, the Court's inartful use of the word "solely" was an error - more so here, where the evidence establishes that JEM's methods, as the contractor who on this record is said to have placed the scaffold planks upon which plaintiff worked at the time of the accident. Thus, JEM' s means and methods could also be deemed the source of plaintiff's accident. previously noted by the Court, Significantly, here, as Joseph Molina, testified that to perform its work, JEM' s president, JEM would move the planks to the areas of the scaffolding adjacent to those portions of the Page 7 of 11 [* 8] buildings on which it was required to work. Molina testified that JEM would also move the planks to allow B&R to perform its work as well. Thus the use of the word solely was error. The Court Construction also and erred Banner's in failing motion limit the grant its on to of claim for contractual J indemnification against B&R by the terms of the relevant agreement. Significantly, as previously noted by the Court, with regard to an indemnification transgression contracts, agreement, absent of public policy, making whatever a violation people agreement are they of free wish, law some enter to or into no matter how unwise they may seem to others (Rowe v Great Atlantic & Pacific Tea Company, 46 NY2d 62, Inc., contract dispute arises, 67-68 In order to Consequently, when a it is the court's role to enforce the agreement rather than reform it [1979]). [1978]). (Grace v Nappa, enforce the agreement, 46 NY2d 560, the court 565 must construe it in accordance with the intent of the parties, the best evidence of which being the very contract itself and the terms contained therein (Greenfield v Philles Records, Inc., 98 NY2d 562, 569 [2002]). It is well settled that "when the parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms" v 583 Madison Realty Company, quotation marks omitted]) complete, clear and (Vermont Teddy Bear Co., Inc. 1 NY3d 470, 475 [2004] [internal Moreover, "a written agreement that is unambiguous on Page 8 of its 11 face must be enforced [* 9] according to the plain meaning of its terms" (Greenfield at 569). Here, while the Court noted that paragraph 9 of the agreement between Beauce and B&R, governing indemnification to J Contruction and Banner from B&R states that B&R would "indemnify, defend and hold harmless Owner [and] Construction Manager," for "any negligent act or omission of the Subcontractor," the Court failed to also apply the terms of a rider to the contract submitted by B&R which at paragraph 28 limits indemnification by B&R only to the extent [of damages] caused by the negligent acts or omissions of the Subcontractor, the Subcontractor's Subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable. Based on the foregoing, the Court properly conditionally granted J Construction and Banner's motion for concluding that they were not negligent. indemnification upon However, such conditional indemnification should have also been limited by the degree and the extent to which B&R was negligent, if at all. The remainder of B&R's motion to reargue is denied. Significantly, the portion of the motion seeking reversal of the Court's prior decision granting J Construction and Banner summary judgment on their claim against B&R for common law indemnification must be denied insofar as the arguments asserted in support thereof are being asserted for the first time on reargument. above, reargument As noted is not a vehicle by which a party can get a second bite at the same apple, a motion for reargument preludes a Page 9 of 11 [* 10] litigant from advancing new arguments or taking new positions which were not previously raised in the original motion (Foley at 567). Here, irrespective of the merit of the arguments asserted by B&R, a review of its prior cross-motion - wherein B&R interposed opposition to J Construction and Banner's motion - evinces that it is bereft of any of the arguments now being asserted on reargument. Indeed, B&R never urged denial of Construction and Banner's J motion on the issue of common law indemnification on grounds of the absence of a grave injury. Instead, the sole argument previously asserted by B&R on this issue was that it was not negligent. Thus, reargument of the fore going portion of the prior order must be denied. Reargument of the portion of this Court's prior order denying B&R's cross-motion for summary judgment and dismissal of the claims asserted against misapprehended the previously noted, its negligence it is also facts nor denied misapplied such that the the Court law. neither Indeed, as the evidence submitted by B&R failed to negate that B&R entitlement to summary judgment. ORDERED because failed to establish prima facie It is hereby to the extent that this Court's Decision and Order dated May 11, 2017 indicates "that plaintiff's accident arose solely from the means and methods employed by B&R," the same be amended to omit the word solely. It is further ORDERED that if J Construction and Banner are found liable for Page 10 of 11 [* 11] plaintiff's accident and B&R is found negligent, that B&R indemnify J Construction and Banner for any damages awarded against them but only to the extent and to the degree of B&R's negligence. It is further ORDERED that B&R serve a copy of this Decision and Order with Notice of Entry upon all parties within thirty (30) days hereof. This constitutes this Court's decision and Order. Dated : December 6, 2017 Bronx, New York BEN Page 11 of 11 JSC.

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