Flynn v Turner Constr. Co.

Flynn v Turner Constr. Co. 2017 NY Slip Op 08472 Decided on December 5, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 5, 2017
Gische, J.P., Kapnick, Oing, Moulton, JJ.
5120 113859/11 590270/13

[*1]Martin Flynn, Plaintiff-Respondent,

v

Turner Construction Company, et al., Defendants-Respondents, LVI Services, Inc., Defendant-Appellant.



Turner Construction Company, et al., Third-Party Plaintiffs-Respondents,

v

Five Star Electric Corp., Third-Party Defendant, LVI Services, Inc., Third-Party Defendant-Appellant.

McMahon, Martine & Gallagher, LLP, Brooklyn (Patrick W. Brophy of counsel), for appellant.

Law Office of Barry M. Sweeney, New Suffolk (Barry M. Sweeney of counsel), for Martin Flynn, respondent.

Mound Cotton Wollan & Greengrass LLP, New York (Steven A. Torrini of counsel), for Turner Construction Company and MSG Holdings, L.P., respondents.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered January 13, 2016, which, to the extent appealed from as limited by the briefs, denied defendant/third-party defendant LVI Services, Inc.'s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims and all third-party and cross claims against it, and granted defendants/third-party plaintiffs' motion for conditional summary judgment on their contractual indemnification claim against LVI, unanimously affirmed, without costs.

LVI failed to establish prima facie that plaintiff was not exposed to toxins at sufficient levels to cause his claimed respiratory illness (see Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]). The record contains ample evidence of plaintiff's exposure to toxins at the construction site, and LVI's expert did not opine that those toxins were not capable of causing plaintiff's respiratory illness. Nor did LVI establish prima facie that it was not responsible for the release into the air of toxins that allegedly caused plaintiff's respiratory illness. LVI was responsible for asbestos abatement, lead abatement, and concrete demolition on the job site. The record shows that there was demolition going on throughout the building generating dust clouds thick enough to be visible in progress photographs and that there were widespread complaints about the air quality, including the presence of silica dust, which occurs naturally during concrete demolition. In view of LVI's failure to make its prima facie showing, we need not examine plaintiff's opposition to LVI's motion (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Under its subcontract with defendant/third-party defendant Turner Construction Company, LVI must defend and indemnify Turner and defendant/third-party defendant MSG [*2]Holdings, L.P., for liability and loss, including legal fees, merely claimed to have resulted from injury arising out of or in connection with LVI's work, unless and until the injury is determined to have been caused by the negligence or willful misconduct of Turner, MSG, or another of Turner's subcontractors. Since there has not yet been a determination of that issue, Turner and MSG are entitled to conditional summary judgment on their claim against LVI for contractual indemnification (see Rainer v Gray-Line Dev. Co., LLC, 117 AD3d 634 [1st Dept 2014]; Cerverizzo v City of New York, 116 AD3d 469, 471-472 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 5, 2017

CLERK