Triborough Bridge & Tunnel Auth. v Safespan Platform Sys., Inc.

[*1] Triborough Bridge & Tunnel Auth. v Safespan Platform Sys., Inc. 2008 NY Slip Op 52137(U) [21 Misc 3d 1122(A)] Decided on July 22, 2008 Supreme Court, Bronx County Friedlander, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 22, 2008
Supreme Court, Bronx County

Triborough Bridge and Tunnel Authority and CAMPBELL PAINTING, Third-Party, Plaintiffs,

against

Safespan Platform System, Inc., Third-Party, Defendant.



85502/06

Mark Friedlander, J.

Third-Party Plaintiff Triborough Bridge and Tunnel Authority ("TBTA") moves, pursuant to CPLR 2221, for renewal and re-argument of its previous motion, decided by this Court in an order dated March 26, 2008, and, upon renewal/re-argument, for an order granting it summary judgment on its claims for indemnification against Third-Party Defendant Safespan Platform Systems, Inc. ("SPS").SPS cross-moves for re-argument, relating to the same order, asserting that this Court erred in previously concluding that TBTA's exposure to liability under Labor Law section 241(6) ("LL 241") would not be an impediment to its right to indemnification from SPS, despite the provisions of General Obligations Law section 5-322.1 ("GOL 5-322.1"). For the reasons set forth hereinafter, the motion and cross-motion are both denied in all respects, and the Court adheres to its earlier decision.

The instant third party action has been severed from the main, or underlying, action, which is styled "James Conklin v. TBTA and Campbell Painting" and arises out of injuries sustained by laborer James Conklin while working on the refurbishing of the Henry Hudson Bridge, a structure owned by TBTA. TBTA retained Campbell Painting as its general contractor, and Campbell, in turn, retained SPS (which employed Conklin) as a sub-contractor. There appears to be no question that, by contract, SPS undertook to indemnify, and procure insurance for, TBTA, with regard to liability for injuries sustained by laborers during the refurbishing. The contract is annexed to the moving papers.

In its decision in March 2008, the Court took note of the law of this case, based on the earlier ruling of Justice Yvonne Gonzalez, dated December 18, 2006, to the effect that TBTA had no liability herein for any negligence, only potential liability under LL 241, for violation of one regulation. This Court then found that such potential liability, which is not based on negligence, would not be a bar to recovery on a claim for indemnification, despite the limiting provision in GOL 5-322.1. This Court thereafter concluded that it nevertheless would be premature to grant TBTA summary judgment on its claims for indemnification and breach of contract, in that no liability on the part of TBTA had yet been found. [*2]

Both TBTA and SPS now express dissatisfaction with the result previously reached by this Court. TBTA begins its renewed effort with the submission of a decision in this action, rendered by the Appellate Division, First Department, on March 11, 2008. As such decision was not available to TBTA at the time of submission of the earlier motion, it constitutes a valid basis for renewal. The appellate decision modified the 2006 ruling of Justice Gonzalez to the extent (as relevant here) of granting summary judgment against TBTA under Labor Law section 240(1) ("LL 240") for elevation-related injuries sustained by laborer Conklin.

TBTA now argues that, because summary judgment has been rendered against it on at least one labor law claim, there is no impediment to its eliciting, in turn, summary judgment against SPS on its claim for indemnification. In effect, TBTA asserts, such effort at resolving the indemnification issue is no longer premature. It appears that the renewal motion differs from the initial application in that TBTA no longer seeks summary judgment on its second claim (for breach of contract). TBTA cites Roddy v. Nederlander, 44 AD3d 556, for the proposition that a judgment as to indemnification is timely, noting that the appellate court lauded "conditional summary judgment" as serving the interests of justice and judicial economy "in affording the indemnitee the earliest possible determination as to the extent to which he may expect to be re-imbursed."

The precedent cited by TBTA is indeed appropriate and is further bolstered by another First Department decision, also rendered in 2007, Lowe v. Dollar Tree, 40 AD3d 264. In this Court's previous decision, support for postponing judgment as to indemnification was based in part on yet another 2007 First Department decision, Smith v. McClier Corp., 38 AD3d 322, which left undisturbed a lower court's decision finding premature the issue of indemnification. This Court now notes that these three decisions were issued by three different panels of the appellate court, with very little overlap in the justices who constituted the panels (Justice Nardelli participated in all three).

In its cross-motion, SPS argues that this Court should not have concluded that GOL 5-322.1 was no bar to indemnification of TBTA. SPS maintains that LL 241 is fundamentally different from LL 240, in that the latter is truly a "strict liability" statute imposing liability irrespective of negligence, while the former implies "some evidence" of negligence, which thus precludes indemnification. SPS complains that the precedent cited by this Court in the previous order, to support the entitlement of TBTA to contribution (Brown v. Two Exchange Place, 76 NY2d 172) dealt with LL 240 only and not LL 241. In this single point, SPS is correct, but that is a distinction without a difference, as will be demonstrated infra.

SPS cites Long v. Forest-Fehlhaber, 55 NY2d 154, for the proposition that liability of a party under LL 241 constitutes "some evidence of negligence." This Court finds such citation to be inapposite, as SPS misconstrues the meaning of the cited decision. There is no doubt that LL 241, in applying to site owners who did not direct the activities in question, does not depend on a finding of any negligence whatsoever on the part of such site owner. Rather, so long as violation of the specific regulation is found to have occurred, the site owner is exposed to liability. The use of the phrase "some evidence of negligence" in the above decision relates solely to the negligence of the site supervisor (i.e. sub-contractor) whose immediate act constituted the regulatory violation. Most importantly, the court in that decision was using the phrase solely and pointedly to enable the defendants to claim contributory negligence on the part of plaintiff (such [*3]claim not being available under LL 240). Thus, the phrase, as used there, has no application to the possible liability of the site owner, only to the extent of contribution by a plaintiff.

Here, the law of the case is that TBTA was not negligent and has no liability either for common law negligence or under Labor Law section 200. If TBTA's liability under LL 241 were premised on negligence, Justice Gonzalez could not have found that there was no negligence on its part. Rather, TBTA's possible liability under LL 241 is premised on something other than its own negligence, to wit: its exposure based on its ownership of the site. SPS's argument that TBTA had a duty to provide "safe access" for the laborer and that a failure to do so "could be" evidence of negligence, constitutes nothing more than speculation, speculation which, most significantly, directly contradicts the clear import of the earlier decision of Justice Gonzalez. The time to argue about TBTA's alleged responsibility to provide "safe access" passed when the 2006 motion was submitted to Justice Gonzalez.

Ultimately, the cross-motion by SPS fails on three separate grounds: First, the possible liability of TBTA under LL 241 does not preclude its indemnification by SPS, because nothing about such liability would impute negligence to TBTA, such that TBTA would be prevented from being indemnified, as per GOL 5-322.1. Second, TBTA now has been found liable under LL 240, and there is no doubt that such liability carries no implication of negligence, and that it therefore entitles TBTA to claim indemnification from SPS. Thus, for at least some part of the claim against TBTA, there would be a requirement on the part of SPS to indemnify TBTA.

Finally, there is some doubt that even a finding of negligence on the part of TBTA would automatically prevent all indemnification, as a matter of law. Where commercial parties freely negotiate sharing of insurance protection to cover various risks, the courts do not necessarily apply GOL 5-322.1, because the courts see such section as primarily intended to protect "victims" of negligence from overreaching, self-protecting tort-feasors. See Roddy v. Nederlander, cited supra; Hogeland v. Sibley, 42 NY2d 153. Here, there is a clear contractual effort to allocate risk by requiring insurance coverage and the relationship between these parties is of the type covered by the cited case law. The Court concedes though that, despite the precedent cited in this paragraph, the contractual provisions in the instant case may preclude indemnification from SPS, if TBTA is held to have been negligent in the underlying accident.

For all of the above reasons, the cross-motion by SPS is denied in all respects. The Court finds that it did not misapprehend any issue of fact or law in the issuance of its previous order on this subject.

Although TBTA, on its motion, submits relevant precedent as to the propriety of a conditional grant of summary judgment, such precedent does not deal with the unusual facts of the instant case. As the Court noted in its original decision on this matter, TBTA's claim seeks indemnification only for amounts in any judgment against TBTA which exceed one million dollars, up to two million dollars. Thus, judgment against TBTA does not automatically trigger any responsibility on the part of SPS to indemnify anyone. It is completely speculative at this point to pre-suppose what the amount of any award may be. No proof has been presented on the previous motion, or on the instant renewal thereof, as to what injuries were sustained in the underlying accident. The mere fact that the underlying complaint demanded twenty million dollars is illustrative of nothing.

Because the ultimate responsibility of SPS to TBTA may depend on whether TBTA is [*4]found liable to plaintiff under LL 241 as well as LL 240, and then, whether the damages awarded for such liability as may be found against TBTA exceed one million dollars, there is sufficient uncertainty in the prospects of the parties hereto, so that the aim of "affording the indemnitee the earliest possible determination as to the extent to which he may expect to be re-imbursed" (as case law suggests)is entirely elusive. This is especially the case when the second cause of action in the third-party complaint is considered.

TBTA has not included the second, or breach of contract, claim in its renewal effort, and it seems to the Court that the reason for this omission is TBTA's realization that, as explained in the Court's earlier decision, the breach of contract claim brings up issues which further emphasize the prematurity of granting summary judgment now, as to indemnification which may never become relevant.

In the breach of contract claim, TBTA accuses SPS of failure to procure promised insurance coverage for verdict amounts between one and two million dollars. However, as this Court found in its earlier decision, the exhibits show that SPS did in fact procure such insurance, but that the insurer later disclaimed on the basis of purported late notification. TBTA and SPS now accuse each other of responsibility for such late notification. Therefore, the responsibilities of the parties to each other turn on issues of fact not yet determined. Clearly, there is little judicial economy in attempting to now resolve the rights of these parties, if their ultimate rights will still depend on a factual trial as to the insurance issue.

Certainly, the presence or absence of insurance coverage, together with the fault for any absent coverage, will ultimately overwhelm in practical importance the issue of entitlement to a limited amount of indemnification which the parties now contest. For these reasons, it seems that, in the exercise of discretion, the matter of indemnification is best postponed until the remaining issues are sorted out, so that a coherent picture emerges of the details of the responsibility of the various parties to each other in this action. For these reasons, the Court adheres to its original decision and, based on the precedent previously cited by the Court, here and in the earlier decision (see Smith v. McClier, supra) postpones at this time the consideration of a grant of summary judgment on the issue of TBTA's entitlement to indemnification.

By reason of the foregoing, the motion and cross-motion are denied in all respects.

This constitutes the Decision and Order of the Court.

\s\

Dated: July 22, 2008____________________________

Mark Friedlander, J.S.C.