Varona v Story Ave. E. Residential, LLC

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Varona v Story Ave. E. Residential, LLC 2021 NY Slip Op 32965(U) December 21, 2021 Supreme Court, Kings County Docket Number: Index No. 509734/17 Judge: Ingrid Joseph 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. [*FILED: 1] KINGS COUNTY CLERK 02/10/2022 02:56 PM NYSCEF DOC. NO. 497 INDEX NO. 509734/2017 RECEIVED NYSCEF: 02/10/2022 At an IAS Tem1, Part 83 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse. at 360 Adams Street, Brooklyn, New York, on the 21st day of December, 2021. PRESENT: llON. INGRID JOSEPH. .J.S.C. SUPREME COURT OF THE ST ATE OF NEW YORK KINGS COUNTY - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - X LENIN VARONA and ELIZABETH CARRASCO, Plaintiffs, Index No. 509734/17 -againstSTORY AVENUE EAST RESIDENTIAL, LLC, STORY AVENUE EAST RESIDENTIAL MANAGERS, LLC, STORY AVENUE IIOLDC0, LLC, L&M STORY AVENUE MANAGERS, LLC, STORY AVENUE EAST AFFORDABLE LLC, STORY AVENUE EAST AFFORDABLE MANAGERS, LLC, HP LAFAYETTE BOYNTON HOUSING DEVELOPMENT FUNO COMPANY, JNC, and L&M BUILDERS GROUP INC., Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - -X STORY AVENUE EAST RESIDENTIAL, LLC, STORY A VENUE EAST RESIDENTIAL MANAGERS, LLC, STORY AVENUE HOLDCO, LLC, L&M STORY AVENUE MANAGERS, LLC, STORY A VENUE EAST AFFORDABLE LLC, STORY AVENUE EAST AFFORDABLE MAN AGERS, LLC, HP LAFAYETTE BOYNTON IJOUSING DEVELOPMENT FUND COMPANY, INC, and L&M BUIIDERS GROUP INC., Third-Party Plaintiffs, -against4MATIC' CONSTRUCTION, CORI'., Third-Party Dckndants. - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - X ST( lRY ,\ VI ",H I F ..\S I RFSIDENTL\L LLC. S I\JI<. Y F,\ST f{J'SIDI NTl"'.I 1\IAN,\(il l<.S_ LLC. S1u1zY i\\'G..JU I loIDCO. LLC L&\1 STUR\ i\\T'\1_11 IVL\l\,\C,rlZS. LLC. STORY A\Tl\lll F,\SI AITORD-\HU !,IC STCH<Y ;\\IJ..JI. 1-E\Sl \i I URD/d1lF fVL\~~\Cil IZS. LLC. I IP] ,,"'.I\ YI TTI ,\ \T.'\l I1- BOY".10". llOllSl".G lJEVELOP\tFVI Ftlf'.[) Corv!P.·\NY, 1 of 12 [*FILED: 2] KINGS COUNTY CLERK 02/10/2022 02:56 PM NYSCEF DOC. NO. 497 INDEX NO. 509734/2017 RECEIVED NYSCEF: 02/10/2022 INC. and L&M BUILDERS GROUP 1NC., Second Third-Party Plaintiffs, -againstPRo SAFETY SERVICES LLC and LIBROS MASONRY CORP., Second Third-Party Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - X STORY AVENUE EAST RESIDENTIAL, LLC, STORY AVENUE EAST RESIDENTIAL MANAGERS, LLC, STORY AVENUE HOLDCO, LLC, L&M STORY AVENUE MANAGERS, LLC, STORY AVENUE EAST AFFORDABLE J,LC, STORY A VENUE EAST AFFORDABLE MANAGERS, LLC, HP LAFAYETTE BOYNTON HOUSING DEVELOPMENT FUND COMPANY, INC, and L&M BUILDERS GROUP INC., Third Third-Party Plaintiffs, -against4MATIC CONSTRUCTION, CORP., Third Third-Party Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - X NYSEF Doc. Nos.: The following e-filed papers read herein: Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed _ _ _ _ _ _ _ __ Opposing Aflidavits (Affirmations)_ _ _ _ _ __ Atlidavits/ Affirmations in Reply 216,218, 297-297, 322-323, 354-355,369-370.384-385.400 236,279,299,347,416,417,418 419.420,422,423.435,447.459,478 284.466,474.485.487.491 Upon the foregoing papers, second third-party defendant Pro Safety Services LLC (Pro Satcty) (Mot. Seq. 8) and second third-party defendant Libros Masonry Corp. (Li.bros) (Motion Seq. 11) move for an order: (I) pursuant to Cl'l.R § 1010. dismissing or, alternatively, severing th1.· second third-party action; or alternatively. (2) pursuant tn l lniform Rules frir ·1 rial Courts ( ' l\\TRR) § .:21 (e). vacating tlti..~ note ur isSlll'. and striking 1l11.' rn;1ttcr rrn111 th1.c trial calendar: c,r ;dtn11:1tin·ly, (>) granting l'ni Salcty and libros lca\'l: to rnov1.· i'or surnmary judgment 2 2 of 12 (10 days [*FILED: 3] KINGS COUNTY CLERK 02/10/2022 02:56 PM NYSCEF DOC. NO. 497 RECEIVED NYSCEF: 02/10/2022 atkr the n1111plcti(lll (ii all tn;il INDEX NO. 509734/2017 diSL'.O\tT\ in the third-party action \\hilc this matll'r remams 011 the cdcmbr. \ltlhiugh it d,,es not Sl'l'~ dismissal dckndanl 4\bt ic ( 'pnstrul'lion ( 'orp. ( 4f\fotic) \lr the third third-party action. tlmd third-party ulhL'r\\ is'-· 11w, L'S for the same rel id as Pn1 Sakt: and I.ibros \\itli rcsped In the third third-p~irt:, ;icliun t\1ution Seq. 12). 111 separate motions. 1~binliil11w,es. pursu:1111 to ('PI.R §§ 60.1 and 101(!. (() sc,cr T ihrns :rnd 4\ 1atic fr,1111 the actilll1 ( 1\fotirn1 S(·q. IO ,111d l 1 ). linal!,. dcfemfonts.ithird-pany pbintiff:--/sl'C()t1d third-party plaintiffs/third third-p;1rty plarntiffs Story \venue l··asl Residcnti:1L I IC. (St\lry i\n:nue Residential 1. Story .•\,enue Fast Rcsid ...·ntial \tanagers. I I,('_ Story ,\n·rn1c llnldc(l_ I IC, L&\1 St<1ry A,cnUl' Malldf:'.CI"'.< I I('_ Stnn i\,c,rn ...· I ast ,\ffordabk I.IC. (Srory ;\,cnm: l.ast 1\ffr1rdahlc). Stnry .\,cnuc List \!fordc1hle \Lmagers. I IC. l IP l:il·a>l'tte lk1y11t()n I lousing Dn·clopment I und Comp:my. Inc. ,111d I .&tv1 Builders (iroup Inc. (L&r--1 Builder.s, (colleeti,el:, referred to as defendants) move for ,111 \lrder. pmsu;int ln CPI ,R § 3212. t'ranting them summary judgment in their l~t\ or on their cL11rn for cPnlriictual imkmndicatinn and on th ...·ir claim for brc<1ch of agreement to procure 111sur<111cc· ,h ;1g;1insl 4\btic and '>tlmm~iry judgment dismi.ssing the cnunt,:rclairn:-; asserted O\ -~\ht1c a:-: <1g,1ins1 the dcfcnd,rnts ( !ll(1t1on :-;cquence nurnbcr 14 ). In this action pre111is1..'d on CPt11n1on-Lm negligence :md ,,iolati<1n:-; ()f I ahor I a,v §§ 200, 240 ( 1). and 241 (h). plaintiff Lenin Van.nu allcg1..'S that he suffered injuries on ,\pril I~- 2017 \\hen a seatlt1ld on \\hich he \\as starH.ling to perl~irrn \\\1rk nn a building under cunslrul'liun collaps(·d and caused him tn !'all to a concrete slab 18 to 20 lLTl below the scarl~ikl. .-\,cm,.._· Rcsidenllal and Stt1ry ,\,enuc All<.1rdc1blc were m,ners or the 11remiscs al i;;suc. St,in I &\1 13uilders \\as th ...· gcner:il cllntra1,.·tur for the conslructio11 prn1cct at issue, and it suhcontractcd \\ it!i Pro Safety tn 11erforrn site safety consuluti(lfl sen ice:-; on the project and subcnntral'lcd \.\ ith 4\1atic. 11lain1ii'l's emplu:LT, to pcrl\)!'111 masPnry ,md cem1..·nt work on the project. 3 3 of 12 4i\latie. in [*FILED: 4] KINGS COUNTY CLERK 02/10/2022 02:56 PM NYSCEF DOC. NO. 497 INDEX NO. 509734/2017 RECEIVED NYSCEF: 02/10/2022 turn, hired Libros as a sub-subcontractor. Libros' role in the project, however, is not clear from the motion papers before the court. 1 Plaintiff commenced this action on May 16, 2017, with the filing of the summons and complaint. A preliminary conference order, dated January 12, 2018, required that any impleader actions be commenced within 90 days of the completion of examinations before trial. ln May 2018, the defendants commenced a third-party action against 4Matic for contractual indemnification, common-law indemnification, contribution and breach of the insurance procurement provisions of their contract. After 4Matic ultimately answered the third-party complaint, defendants and 4Matic entered into a stipulation, dated September 3, 2019, discontinuing the third-party action without prejudice. Despite several orders directing that the depositions occur at an earlier date (see orders dated January 12. 2018 [Sherman, J.], September 26, 2018 [Schncier, J.H.O.1, May 16, 2019 lJ\sh, J.], September 24, 2019 {Colon, J.]), plaintiffs deposition was not held until October 28, 2019, and the defendants' witness, Hugh Emanual, L&M Builder's project manager, was not deposed until November 11, 2019. As ofa September 8, 2020 order (Knipel, J.), plaintiff still owed some discovery. The court, within that order, directed that authorizations and paper discovery be provided by October 9, 2020, that plaintiffs medical examination occur by November 9, 2020, and that the note of issue be filed by March 26. 2021. Tn an order, dated September 25, 2020, the court granted plaintiffs motion for partial summary judgment on his Labor Law § 240 ( 1) cause of action as against defendants. The defendants commenced a second third-party action and third third-party action on September 28, 2020 and plaintiff filed his note of issue on December 4. 2020. Plaintiffs Pro Safety, Libros, and 4Matic and the defendants then made their respective motions al issue here. t,ir • \latic "late,; tli:11 I .ihrns 4\!atric's co11tract \ViH1 I ihrns_ huwncr_ docis nut indicate tllL· nature of I .ihrns' \\()rk, ai1d rv1atic',; coun~l·I fl\llllh tn n,i l'\idcntia1·y pn,ot'tlwt idc11tif1c,; I ibr,i:,' role in the project ('uunc-t·I \\as 4'.\(atic\ bricklaying sul1c,rntr:1ctnr. 4 4 of 12 [*FILED: 5] KINGS COUNTY CLERK 02/10/2022 02:56 PM NYSCEF DOC. NO. 497 INDEX NO. 509734/2017 RECEIVED NYSCEF: 02/10/2022 Of note, the court, in an order dated July 13, 2021 (July 2021 order), granted the defendants' motion to reargue plaintiffs summary judgment motion to the extent that it vacated that part of the order that granted summary judgment on plaintiff's Labor Law § 240 ( 1) cause of action with respect to the defendants, except Story Avenue Residential, Story Avenue Affc.lrdable, and L&M Builders. In the July 2021 order, the court also awarded summary judgment in favor of the defendants, dismissing plaintitrs common-law negligence and Labor Law§ 200 causes of action and plaintiff's Labor Law§ 241 (6) claims based on Industrial Code violations, except the claim under 12 NYC RR§ 23-1. t 6. Turning first to the motions by plaintiff and the second third-party and third third-party defendants. a court has the discretion to dismiss without prejudice or to sever a third-party action in order to avoid delay in the main action where discovery in the main action has been completed and the third-party defendants have not had an opportunity to obtain discovery (see Whippoorwill Hills Homeowners Assn., Inc. v Toll at Whippoorwill, L.P., 91 AD3d 864, 865 [2d Dept 2012]; Meczkowski v E.W. Howell Co., Inc., 63 AD3d 803,804 [2d Dept 2009]; CPLR §§ 603 and t O10). Courts, however, remain reluctant to sever the third-party action where the determination of the third-party claims will involve factual and legal issues common with those in the main action because "a single trial [under such circumstances] is appropriate in the interest of judicial economy and to avoid the possibility of inconsistent verdicts" (Herrera v Municipal Jlou.s. Auth. of City of Yonkers, 107 AD3d 949,949 [2d Dept 2013]; see Barrell v New York City l!ea/fh & Hosps. Corp., 150 AD3d 949, 951 [2d Dept 2017]; Boeke v Our Lady l~/' Pompei School, 73 AD3d 825, 826 [2d Dept 20101). These policy concerns warrant a denial of a motion to sever even where the delay in commencing the third-party action was unjustified 2 as long as Altlwugh there me case:-; l1olding that a deCcnd,rnt':-- knowingly ii!ld dclibcrntely delay111g the cu111111c111.-c111e11t oi' the thircl-p::irty ac:tion will \\arrant the dis111i,sal or -:,evera11ee of the third-party acti,)n is,c Suto 1· ('HS Corp._ 157 AD3d 740. 741 \:::d Dept 2018]: Sknilll,·k 1· ,Hn Co1m1ir U('. 89 i\DJd ,\.\]_ ,144 11 s;i Dept 20 I I j). this court t"i11ds that dckndanh' delay here. in :111(! nf itself fails tu ,hO\\ th:1t rhc:kn•.lwin,~ly and clcliberatcly debyccl the l:u111111rncc111c11t of the third-pdrt} action'>. 5 5 of 12 [*FILED: 6] KINGS COUNTY CLERK 02/10/2022 02:56 PM INDEX NO. 509734/2017 NYSCEF DOC. NO. 497 RECEIVED NYSCEF: 02/10/2022 prejudice to pbintitl and lhe third-11;irty ddendant can be avPided by insuring that the third-party det'._,111.hnt receives the requisite discovery and that this discovery is provided in an l'.XpeditcJ 111;rnner such th:tt thlTl' is in rli,· Citr o/,V r. rn1 undue delay or th\..' action (s£'e Range Trns/ccs of ( ·0!11mhiu { ·11i1• 150 AD3d 515. 515 I 1st Ik'j"ll 2017]: /frnau . 107 /\1)_"\d ,\IJ\d at 826: .lo11es \' Roon/ o/!'.'d11c of( ·111· u(,V 1· 1· r. di ().. 1,(): Hocke. n 2()2 i\D2d 500. 501 12d Dept 200::'I: f....'lcin C'in of 1.nng /Jeoch. 154 1\I )2J 146. 34 7 l2d Dept 198')]: !'cscu/orc ,, . lmericun Fxpo1·1 finl's. Ul i\D2cl 739. 739 l2d l)ept 1987J: hies,, Sid fool Co, Inc 90 i\1)2d 512. 51.., [2d Dept 1982 I: cl. fV/ '/ r} low. OcT F1111d C'()Ip \' !lrookl1·11 !nrn/ation & Smmdrmw!ing, •<; -•--, 1 . :-i-,,, __ ,-:-i_•t lilt • 1!)3 A I )3d 11·:-,t I) ept _. '(Pll) _ . I !en:. dcl.<...'lldants have failed tn pruvide any justitic:iti()n llir their delay in commcnci11g the Lhird-party actions and their failure lo d1) prclirni11ary conference order. S<) \\ilhi11 the time-period pwvidcd in the '\Jcvcrthelcss. plaintiff still owed so1n(· discovery and the nok ,it· issue still had not been fikd prior to the shuldowns associated \\ith the ( 'ovid-19 pandemic in micl-\tirch 2020. The time from mid-r'vfarch 2020 until the third-party actions were cr,rnmenced in Sep!L'mber 2020 is undoubtedly lolled by the executive orders issu<...·d in response to till· p:111dernic (.1ee Brush 1· N.ic/wn/1_ 195 ;\L)Jd 5S2 . 583-585 f2J Dept 20211 ). plainLiff still o\\cd some discuv . .Ty in Sept<...'rnher 2020 . and the note by till' September 8. 2020 order was fl.larch 2h. 2021. or issue lnLkcd. dcaclli1w provided Defendants thus had some basis 111 believe that the co111rne1Kemcnt of the third-party actions would not unreasnnahly delay thl: pruL-ccdings. since the action is scheduled on th-: Jury Coordinating Part's calendar on February 17. 2022 f()r a SL'tllemcnl l·onferencc, not for trial. Under these circurnslanccs, any brier additional delay to allo\v Lhe Lhird-pany dcl\...'.tldants to conduct expedited discovery would nu! cause plaintiff any substantial prejudice (see Klein, 154 AD2d at 347). further, in view of the overlapping factual and legal issues that remain between the action and the third-party actions 6 6 of 12 [*FILED: 7] KINGS COUNTY CLERK 02/10/2022 02:56 PM INDEX NO. 509734/2017 NYSCEF DOC. NO. 497 RECEIVED NYSCEF: 02/10/2022 1.lcspill' the various :-;umrnary judgment detcrn1in:1ti1,1n:-;.' the court find:-; rhal denying scvcranc<: s1,.:rv1,:s the intcrc:-:t of.judicial \.Tonorny. lhc parties arL'. thus d1rcckd lo \\ork oul an i::-.:peditcd discovery :-:chL·dule. \Vith discovery to he corn17lctcd on or before i\pril 11. 2022. I he third-party ,tctions \Vere rnmrnrnccd onl~ shortly hdore the filing of the note of issue and before :my ol" the third-party dcl"cmlants had an \1pportunity to obtain disclosure, the time l,l move for :-;urnnrnry judgment relating to the third-party claims is c-:tcnded to \fay (). 2022 (sec Parka 1· L/J\IC-,~utr!llitc /)ia!yse.1 Fucili11. ()2 i\D1d 740. 7-l-1-742 l2d Dept 2012]: liissel/ ,. Imm 0/.lmhcr.1/. Dept 20081. fr di.1111issed ill .ld\"O//CC J)Ol"f )(1 AD3d 1144. 114(1 [4th & Ii· demed i11 purr I,.., N'r'3d 878 \20091: sec ul.10 Rolunle, fr< ·o. Inc.. 148 ,\Ind 421. -.+24-42) [ I st Dept 20171). Tile court llOW turns tn dcrcndants' motion lt1r sum1rntry judgme11t on their third-party claims ag21insl 4Matic. _,\s an initial matter. as del'endanls made the inotion a little mnrc than lv,o nw11lhs ai'lct 4\fatic joined issue, go()d cause is surliL·icntly demonstrated such that the court will consider the motion despite the fact that it \\as made more than 60 days alter the filing of the note \\t' issuic:: (1c-e !'urker. ():?_ AD3d at 7-tl-7-+2: !3issei!. 56 i\D3cl at 11-t(i). C,cncrally. a party scckin):'. contractual indemnification demonstrates its prima focic enlitlemcnt tu st1111mary judgment on such a claim l"J\ shm,ing that the terms of the agreement provide lrir i11de11111ilicatio11 under the cin:umstances of the case and that it i:-: free from neglig1,_'.ncc (.1ec ,11///cr,on 1· f nitccl !'orccf Sen· .. Inc. 1<)4 ,\D3d (175. (178 [2d Dept 20211: Afurtine::. \' .?8/ 13,oadmrr Holding.1. II ( '_ 183 A D3d 716, 718 12d Dept 2020 I:. lkl/1 cng J11c. 108 .i'\D3d 1027, 1031 l-l-th Dept 20131). 1· .\'ico!i & .\ f11.11oro ''A party is entitled to Cull contractual indcnmitication pr(_widL·d that the int<:ntion lo indemnify can be clearly implied from the Although plaintiff has obtained summary judgment in his favor on the Labor Law § 240 (1) cause of action against some of the defendants, and defendants have obtained dismissal of the common-law negligence and Labor Law § 200 causes of action, a trial is still required with respect to liability on the Labor Law§ 240 ( 1) cause of action against some of the defendants, liability on the Labor Law§ 241 (6) cause of action and with respect to damages. 7 7 of 12 [*FILED: 8] KINGS COUNTY CLERK 02/10/2022 02:56 PM NYSCEF DOC. NO. 497 INDEX NO. 509734/2017 RECEIVED NYSCEF: 02/10/2022 language and purpos;cs 01· the entire agreement and the surrounding Ltcls and circumstanel·s" (( 'uc!!ur ,, ( ·;1_1 u( .\1)11 }ork. ]Yi ,\1)3d 99h. 998 12d l)q)t 20Hil \inll'.rnal quuLition marks /'u11 l,,. . I 111/1 u/ ,\lute o! .\' l . 85 /\ D 1d 7 ! 8. 7 '2 I 2d Dept 20 l I 1- Ir dt'11icd 20 '\Y 3d 8."<1 f 20 U I). Sine\.· -+~1a11c \\as nut a party to the action at the time the "kkndants 1110\ed to dismi:,,s thl· c, 1mn11in-Lm 11cgligc11ce and I ab1)r ! a\\ § 200 causes 01· action. !hi.') arc fll)l hound t\1 this; c,1m1\ July 5. 2021 ordn. wherein the enmt ()pined that lh1,.• dckndanb were not negligent. 1 '\Jc\i.·rth\.·kss. iust as they did in 1110\ inµ lo disrni:-;:-; plaintiffs claims. the dcti._,ndants. thrnugh the c.;11hrn1ssiPll ()! the deposition tcsti11K1ny of plaintilf the deposition ksti111llll'\ of I !ugh !·:manual. I.& \1 Huildcr'c.; proic-ct rnarwgcr. :md an allida\ it 1·wm "'Hvlatic's project manaf,'.Cr I Puis I :1//inn~m1.' h<1\ i.' dem, inst rated that the accident JiJ not arise from a (hll\ger(l\lS pro pert_\ condition. but rathi..'L \\,ts the result of the uilbpse ol a delL·clivt scaffold erected b_\ --t\L11ic TliL· dL·lcndants did tl\.it supervise or c\lntrnl the \\urk at issue anJ \\ere nut i11n1hed in tlK· L'\llhlructi,rn pf the scaffold. 11cgligrnt (.,cc /Jut/lei· _\T I unn· ,1'1oc·. ![('. ThereltllT. tlk:y ha\L' de111011straled. prirna focic. that the_\ \\Crc not ne,·s. .-\' I 1st Dept 2(1211. \l,1111/ondu i 160 i\[)_1d 711. 712-71.~ 12d l)ept 20181: Sheu\' !J!oo111herg. I I', 12-+ .,\l)_,d ()21. ()2~ 12d Dept 20IS]: (io11::ulc:: 201--+I). .\(;:1. Inc. 193 AU3d S<i2. S(d i· .\lugn1ic Finl' ('11s1om llumt'. 11" Al13d nri. ;()X [2d Dept C'1111tr;ir: tn -+\Lltic'~ argurni.'111. Fma11ual's tc·stimony regarding the :1uthorit_\ tl!' Pru Safety ;md I &\1 BuildL·r tn stup the \\ork and regarding Pro ~akt; \ irhrK'ctinn role 1aib tu denHmstrak the l',;isli.·nL·e 01· L1ctu:tl issues precluding dl'lendants' prima L.1cie shO\\ ing. as I Ile L'lillrt notes that plai11t11l h:is :-,\lhtllltlL'd l1pp(l:,1tio11 I\\ dct'cnd,mls' 111nt1\111. l'\;1intitl lll>\\L'\L'l. h hound hy the July 5, 2021 order. and it is not clear to this court how plaintiff has standing to challenge the defendants' right to indemnification from 4Matic. In any event, plaintitl's arguments that defendants have failed to demonstrate that they were not negligent are rejected for the reasons stated in the July 5. 2021 order and herein. 5 Lazzinnaro. in his atlidavit, represented that he was authorized to execute the affidavit on behalf of 4Matic. Lazzinnaro appended a copy of the contract between L&M Builders and 4Matic to his affidavit and was the person who executed the contract on 4Matic's behalf. 8 8 of 12 [*FILED: 9] KINGS COUNTY CLERK 02/10/2022 02:56 PM NYSCEF DOC. NO. 497 INDEX NO. 509734/2017 RECEIVED NYSCEF: 02/10/2022 nothing in this testimony suggests that defendants exercised more than general supervisory authority over the 4Matic's work (see Gon=alez. 115 AD3d at 798; Bink v FC. (jueens Place Assoc.. l!,C. 27 AD3d 408, 409 p.d Dept 20061; see also Dehennedello v Chelril, 190 AD3d 933. 938 12d Dept 2021 j; Golt(fien ,, Counly <?l .\'l(ffhlk, 157 AD3d 937. 938 [2d Dept 20181; .\lessina ,. City<!/' New fork. 14 7 AD3d 748. 749- 750 [2d Dept 20 I 7]). The indemnification provision of L&M's contract with 4Matic (Contract) requires that 4Matic indemnity dclendants'' for: "all losses. claims ... damages (including without limitation any personal injury. sickness. disease or death or damage or injury to, loss of or destruction of property. and the loss of use resulting therefrom. and damage to the Work and/or the work of others), expenst!s (including without limitation the deductible amount of any insurance. self-insured retention payments. attorneys' fees and disbursements. court costs. expert witness foes and expenses. and any resulting settlement, judgment, or award), liahilities (including without limitation any from, in connection with or relating to: (i) the performance (or non-performance) of the Work." (Contract § 12.2 fal). Since the aforementioned deposition testimony or plaintiff and Emanual and the affidavit of Lazzinnaro show that the accident arose out 4Matic's ,vork on the project. defendants have demonstrated that they are entitled to indemnification under the terms of this broadly worded indemnification provision (see Brnll'n r Two Hxch. Pla=a Parlners. 76 NY2d 172. 178 fl 990l A,fartinez, 183 AD3d at 718: Shea, 124 A 03d at 621: Bellreng, l 08 AD3d at 1031 ). Even if the supposition of 4Matic's counsel that 4Matic's subcontractor Libros bears some responsibility for the accident were correct. that would not alter 4Matic's contractual obligation to indemnity defendants since the contract expressly makes 4Matic responsible for all work. acts and omissions of its subcontractors for all purposes under the contract (sec Contract§ 14. l [fl). 6 In addition to requiring indemnification on the hchalf of the general contractor. owner and other entities, the indemnification provision cowrs "all Additional Insureds identified in E~hibit B" (Contract § 12.~ [aJ) and each of the defendants is identilied as an additional insured in Exhibit B to the contract. 9 9 of 12 [*FILED: 10] KINGS COUNTY CLERK 02/10/2022 02:56 PM NYSCEF DOC. NO. 497 INDEX NO. 509734/2017 RECEIVED NYSCEF: 02/10/2022 Defendants' proof that they were not negligent is also sufficient to demonstrate, prima facie, that they arc entitled to dismissal of 4Matic's claims for contribution and common-law indemnification against them (see Debennedelfo, 190 AD3d at 938-939; Cutler v Thomas, 171 AD3d 860, 861-862 [2d Dept 2019]; Kane v Peter M Moore Constr. Co., Inc., 145 AD3d 864, 869 [2d Dept 20161; see also McCarthy v Turner Constr., Inc., 17 NY3d 369, 377-378 [2011 ]). 4Matic, in opposition, has failed to submit cvidentiary proof demonstrating a factual issue warranting denial of the portions of the motion seeking contractual indemnification and dismissal of 4Matic's counterclaims for indemnification and contribution (see Dehennedetto. 190 AD3d at 938-939; Martinez, 183 AD3d at 718; see also Zuckerman v City of New York, 49 NY2d 557, 562 [ 19801). The court also rejects 4Matic's a,;;sertion that defendants' motion is premature because 4Matic has not had an opportunity to obtain discovery. 4Matic has failed to offer an evidentiary basis to suggest that discovery might lead to relevant evidence or that facts essential to justify its opposition to the motion are exclusively within the knowledge and control of defendants (see Board <?f Mf{rs. <?fthe 23-33 Condominium v 2UY" Place Realty, LLC, 185 AD3d 890. 891 [2d Dept 2020]; Dunn v Covanta Niagara I, LLC, 181 AD3d 1340, 1341 [4th Dept 2020]; Ne'wman v Ref{ent Conlr. Corp., 31 AD3d 1133, 1134-1135 [4th Dept 2020]). Notably, in this respect, 4Matic has failed to explain how it expects to find favorable evidence through discovery where defendants' motion is largely based on the statements Lazzinnaro, 4Matic's project manager, made in his affidavit. Although Lazzinnaro states that he did not see the accident. he asserts that he was a supervisor at the site of the accident and was working only 20 feel from where plaintiff fell. Lazzinnaro states that he saw plaintiff on the :-,caffnld b1:li.irc the accident. that lw c;nnc to his assistance shortly after the accident. that dckndants did not supcn isL' or e(1ntrol the ,vork of plai11t1 IT or any of 4\1atic's employees. that dcti:·ndants did not prn\·idc tools Pr equipment used by 4\latic. that the sL·art1J!d was owned l,: --l-\1atic. and that it was ndt erected hy l.kkndants. I ,azzinnaro was thus in a positi<1n to kno,v i r 10 10 of 12 [*FILED: 11] KINGS COUNTY CLERK 02/10/2022 02:56 PM NYSCEF DOC. NO. 497 INDEX NO. 509734/2017 RECEIVED NYSCEF: 02/10/2022 the defendants were in anyway at fault for the happening of the accident. In light of this, 4Matic's failure to submit an affidavit from him, or any other 4Matic employee with knowledge of the accident, alleging that discovery would lead to evidence showing that the defendants were negligent, weighs against finding that the defendants' motion is premature despite the absence of discovery (see VNB N. Y, LLC v YA4. Intercontinental Gem Corp., 154 AD3d 903, 904-905 [2d Dept 2017]: U/lmannglass v Oneida. Ltd., 121 AD3d 1371, 1373 [3d Dept 2014]; Thelen LLP v Omni Contr. Co., Inc., 79 AD3d 605, 606 [1st Dept 20111, Iv denied 17 NY3d 713 l201 l ]; /lernandez v Yonkers Conlr. Co .. 292 AD2d 422,424 [2d Dept 2002]: Bank Leumi Trust Co. of N. Y v Samalot/Edge Assoc., 202 AD3d 282,283 f 1st Dept 1994]). Defendants, however, arc not entitled to summary judgment in their favor on their cause of action for breach of the insurance procurement provisions of the contract. While the defendants have shown that their contract with 4Matic required 4Matic to obtain gcncra11iability and excess/umbrella insurance policies naming defendants as additional insureds, they have not demonstrated, prima facic, that 4Matic failed to obtain policies containing the agreed upon coverage. Namely, the only proof offered by defendants with respect to 4Matic's alleged failure to obtain the required coverage is the apparent failure of the claims administrator for 4Matic's excess carrier to respond to defendants' tender letters regarding coverage during the policy in effect from April I, 2017 to April I, 2018. 7 This failure to respond to the defendants' tender letters. in and of itself. however. docs not show that that 4Matic failed to obtain the requisite coverage (see Strong v SI. Thomas Church <?f Irondequoit, 151 AD3d 1887, 1889 l4th Dept 2017]; Sicilia v City <?fNett-' York, 127 AD3d 628,629 [1st Dept 2015]; Arner v RREEF Am., !,LC, 121 AD3d 450,451 llst Dept 2014J; Ginter v Flushing Terrace, LLC. 121 AD3d 840,844 pd Dept 2014 J). Defendants' motion in this respect must thus be denied regardless of the The claims administrator for the excess carrier had previously acknowledged that defendants were additional insureds under the policy in effect from April I, 2016 to April I, 2017. The claims administrator for 4Matics general liability insurer has acknowledged that defendants are additional 11 11 of 12 [*FILED: 12] KINGS COUNTY CLERK 02/10/2022 02:56 PM NYSCEF DOC. NO. 497 INDEX NO. 509734/2017 RECEIVED NYSCEF: 02/10/2022 sufficiency of ...J-\latic's nppPsiti(1n papers (see Wi11cp,1ud ,, \e11· J'ork (_ '11ii· . \Jed ('tr., 6--J. "\J\r2d 851.853jlCJ85J:(ilnter, 111 !\D1dat844). nziscd upon the foregoing. the motions hy Pro Safctv (\1oti{ln Seq. 8). Librns (I\f11tion Seq. 11 ). ...J-T\fatic (T\fotion Seq. 12) and plairniff (f\1otion Seq. 13) arc granlcd only to the extent that: (I) the parties arc JirL-cted to set up an o:peditcd discu\ery schedule prmiding that all disc(1\ cry rck\'ctnt to the second third-pziny and third third-party actions is completed 1m or hcl<m..' f\.farch 11. 2022:x (2 l the nok of issue is not vacated and the case will remain on the trial cakndar. and (.~) the parties' time lt1 mt1ve l'nr summary judgmcm rclatin[:'. to the sccund third-party cll.:tion and thL' third third-party action is C",tended until l\fay 9. 2022. hy Pro Safety. Libws . ...J.l\Ltlic and plaintirr arc \1thcrnise denied. The motions The denial of the portion of these 11l()[i{)ns requesting sncrance. including plaintifFs. Lenin Vart1n:1 and 1-lizabcth Carrasco. motion to sc\ er ( T\ f otion SL·q prejudice t\l l O) the sceonJ third-party action against Ti lm,s is made \\'ithout renew in the e\Cnt that the (kk-nda11ts unn.::asonably delay disc,1vcry. The lkknclanb' motion {\;1otion Seq. l ...J.) is granted to the extent that 4f\1atic's counterclaims, against the dcfcndant.s are dismissed and the detendants are grantl':d surnrnary _juclgmcnt in their t:n'or on their cnntraetual indcrnnilication claim against ...J-I\fatic. The motion is denied\\ ith re:-;pcct w the hrcacli l1f insurance prncurcment claim. This eonstitutL:s the dccisilm and order lli' the cnun. E\JTER JOSEPH, .J.S.C. n. lng_~d Joseph insureds under the requisite general liability policy. The court reminds the parties that they have a settlement conference calendared in the Jury Coordinating Part on February 17, 2022 at 10:00 a.m. 12 12 of 12

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