Fleck v City of New York

[*1] Fleck v City of New York 2008 NY Slip Op 52510(U) [21 Misc 3d 1146(A)] Decided on December 8, 2008 Supreme Court, New York County Cooper, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2008
Supreme Court, New York County

Carston Fleck, MEGAN MICHALAK, NATALIE TYLER, REBECCA CONROY and NATHANIEL MEYSENBURG, Plaintiffs,

against

The City of New York, PARSONS TRANSPORTATION GROUP OF NEW YORK, INC. d/b/a PARSONS, STEINMAN, BOYNTON, GRONQUIST & BIRDSALL, INC., GANDHI ENGINEERING INC., and YONKERS CONTRACTING COMPANY, INC., Defendants.



DANIEL CHYNSKY, Plaintiff,

against

THE CITY OF NEW YORK, PARSONS TRANSPORTATION GROUP OF NEW YORK, INC. d/b/a PARSONS, STEINMAN, BOYNTON, GRONQUIST & BIRDSALL, INC., GANDHI ENGINEERING INC., and YONKERS CONTRACTING COMPANY, INC., Defendants.



111540/2006



For the Plaintiffs:

Adam D. White, Esq.

305 Broadway, Suite 200

New York NY 10007

(212) 577-9710

For Defendant Yonkers:

Fabiani Gohen & Hall, LLP

By: Joelle Y. Reboh, Esq.

570 Lexington Ave, 4th Fl

New York NY 10022

(212) 644-4420

For Defendant Parsons:

Epstein Becker & Green, P.C.

By: John Harris, Esq.

250 Park Avenue New York NY 10177-0077

(212) 351-4500

For Defendant City:

Michael A. Cardozo, Esq.

Corporation Counsel of City of NY

By: Pamela Horan, Esq.

100 Church Street

New York NY 10007

(212) 788-0541

For Defendant Gandhi:

Milber Makris Plousadis & Seiden, LLP

By: Karen Maniscalo, Esq.

3 Barker Avenue, 6th Fl

White Plains NY 10601

(914) 681 8700

Matthew F. Cooper, J.

The motion in Carston Fleck, et al. v The City of New York, et al. (Index No. 403251/2004) is consolidated for purposes of decision with the motion in Daniel Chynsky v The City of New York, et al. (Index No. 111540/2006).

Procedural Background

Both actions were commenced by the filing of a summons and complaint, in May 2004 for the Fleck matter and in August 2006 for the Chynsky matter. The plaintiffs in both actions allege they individually suffered personal injuries when they were thrown off their bicycles after riding over expansion joint covers located on the bicycle path of the Williamsburg Bridge. In both complaints, plaintiffs asserted a claim of negligence against the City of New York ("City"), Parsons Transportation Group of New York, Inc., d/b/a Parsons, Steinman, Boynton, Gronquist & Birdsall, Inc. ("Parsons"), Gandhi Engineering Inc., ("Gandhi") and Yonkers Contracting Company, Inc. ("Yonkers"). The defendants then asserted cross-claims against one another for contribution and indemnification.

In April and June 2008, the City and plaintiffs signed stipulations agreeing to discontinue the action against the City with respect to each of the six plaintiffs. Similarly, on June 20, 2008, Yonkers and plaintiffs signed stipulations agreeing to discontinue the action against Yonkers with respect to each of the six plaintiffs.

Once the City settled with the plaintiffs, it moved for summary judgment dismissing the cross-claims asserted by Parsons against it in both actions. In each action, Parsons made a cross-motion for dismissal of the complaint and for partial summary judgment as to liability on its cross-claim against the City. By decision and order dated October 17, 2008, a Justice of this Court granted the City's motion in part and dismissed Parson's cross-claims for contribution and contractual or quasi-contractual indemnification against the City. The Court, however, denied the City's motion with respect to Parsons' cross-claim for implied or common law indemnification. It also denied Parsons' cross-motion to dismiss the complaints in their entirety as against it and for partial summary judgment as to liability on its cross-claims against the City.

Now, defendant Yonkers moves pursuant to CPLR 3212 for dismissal of the cross-claims for indemnification and contribution brought against it by co-defendants Parsons and Gandhi. [*2]For the reasons which follow, the motions are granted in part and denied in part.

The Parties' Contentions

Yonkers contends that no party to the actions can make out a prima facie case of negligence or contributory negligence against it as there is no evidence that Yonkers owed a duty of care to plaintiff, breached a duty, or that the breach caused the plaintiffs' injuries. Specifically, Yonkers submits that it played no role in the design of the expansion joint covers and had no responsibility for the plates being bent or raised. Yonkers further argues that because it has settled and entered into stipulations of discontinuance with the plaintiffs, any cross-claims against it for contribution are barred by section 15-108 of the New York General Obligations Law (GOL). In support of its motion, Yonkers submits the deposition testimony of John Merolla, a project manager employed by Yonkers, and copies of the stipulations of discontinuance in each action.

Parsons submits that Yonkers' motion should be denied as it "solely supported" by the affirmation of its attorney and not by admissible evidence. With respect to GOL section 15-108, Parsons argues that the conditions required for the applicability of the statute have not been met. Specifically, Parsons argues that Yonkers' failed to establish that "monetary consideration greater than one dollar" was received by plaintiffs as required by GOL section 15-108(d)(1). Additionally, Parsons argues that the stipulations of discontinuance are ineffective as they are not signed by all parties to the actions as required by CPLR 3217(a). In support of its position opposing Yonkers' motion, Parsons submits the affidavit of Iftekhar Choudhury, a principal engineer and project engineer employed by Parsons, and the deposition testimony of Verghese Menachery, an engineer employed by the City of New York's Department of Transportation.

In opposition to Yonkers' motion, Gandhi adopts Parsons' arguments and additionally argues that, as conceded by counsel for Yonkers, GOL section 15-108 does not apply to claims for indemnification. Gandhi submits that if plaintiffs' accidents resulted from Yonkers' installation of the expansion joint covers, rather than Parsons' or Gandhi's design of the joint covers, then Gandhi would be entitled to common law/implied in law indemnification from Yonkers. In support of its position, Gandhi annexes to its papers the deposition testimony of Mr. Choudhury, and the deposition testimony of plaintiffs Carsten Fleck and Daniel Chynsky in their respective actions.

Statement of Facts

The New York City Department of Transportation (City) entered into a number of contracts all of which were part of a larger renovation project for the Williamsburg Bridge. Parsons Opp. Ex. H, Verghese Menachery EBT (hereinafter Menachery EBT)14:5-12. One of the areas to be renovated as part of the larger project was the Manhattan approach of the bridge's bicycle path/footwalk. Menachery EBT 14:1-9. The footwalk is made of deck plates. Menachery EBT 12:11-22. There are joints in between the plates that create a space that allows for expansion of the deck plates. Id. In order to cover the space between the joints, expansion joint covers were designed and constructed. Id. The expansion joint covers are also referred to as "steel bump plates," "footwalk joints," "footwalk joint plates," "bumps," and "metal bumps." Menachery EBT 12:2-6, 11-22.

The City contracted with Parsons to design the footwalk and bikeway for the Williamsburg Bridge. Gandhi Opp. Ex. B., Iftekhar Choudhury EBT (hereinafter Choudhury [*3]EBT) 18:8-22; Menachery EBT 28:3-8. Parsons then subcontracted the design work of the footwalk and bikeway to Gandhi. Choudhury EBT 18:23-19:11, 27: 4-23; Menachery EBT 30:3-5. Gandhi designed the expansion joint covers that were installed on the Manhattan approach of the footwalk/bikeway. Choudhury EBT 24:24-25:10, 28:15-25, 138:18-139:3; Yonkers Mot. Ex. G, John Merolla EBT (hereinafter Merolla EBT)14: 9-16. Once the design plans were finalized by Gandhi, they were delivered to the City by Parsons. Choudhury EBT 83:3-15.

Unlike the expansion joint covers used in other portions of the bridge, those installed on the Manhattan approach of the footwalk/bikeway were bent, in that "they had a peak on them." Merolla EBT 18:15-20. The expansion joint covers were designed to be bent. Menachery EBT 27:16-22. According to Mr. Merolla, Parsons reasoned that the joint plates on the Manhattan approach had to be bent to allow for rotation. Merolla EBT 18:21-19:22, 34:9-35:10. Mr. Merolla further testified that Parsons has also indicated that the bent plate would "act as speed bumps to reduce the speed of bicyclists." Merolla EBT 20:12-21:4. Mr. Choudhury also referred to the use of expansion covers as speed bumps, but indicated that this was the City's expectation. Choudhury Aff. ¶12.

The design drawings received by Parsons were approved by the City. Menachery EBT 28:24-29:3. Once the design was approved, it was given to the construction group. Menachery EBT 23:5-23, 36:19-24. Yonkers was the company with which the City contracted for the construction of the Manhattan approach bikeway as well as the construction of other portions of the bridge. Merolla EBT 6:2-13, 9:18-10:12, 11:14-25. Pursuant to its contract with the City, it was Yonkers' responsibility to construct and install the expansion joint covers on the Manhattan approach of the footwalk/bikeway. Merolla EBT 6:21-7:5,8:2-18; Menachery EBT 20:10-17; Choudhury EBT 23:24-24:5. The expansion joint plates were fabricated by Yonkers' fabricator, Leonard Kunkin and Associates. Merolla EBT 12:2-7. The fabricator and its detailer generated shop drawings for the plates based upon the contract drawings created by Parsons. Choudhury EBT 115:7 116:19; Merolla EBT 12:8-15. The shop drawings created by Yonkers' fabricator were approved by Parsons. Choudhury EBT 120:2-10.

It is undisputed that there was no contract between Yonkers and Parsons or between Yonkers and Gandhi with respect to the Williamsburg Renovation Project. However, there was interaction between Yonkers and Parsons and Gandhi to the extent that when technical questions arose they would be answered by members of Parsons or Gandhi. Merolla EBT 13:13-17, 146:19-147:8.

In the fall of 2002, Yonkers began installing the bent expansion plates. Merolla EBT 30:15-18. During the initial installation stage of the expansion plates, there appeared to be a "gap" or "slightly larger" space between the overlay and the expansion joint cover on the downhill side of the expansion cover. Merolla EBT 41: 18-25; Choudhury EBT 89:3-17, 90:3-6. According to Mr. Choudhury, the expansion joint plates were designed to be flush with the overlay, but many of them were installed with a gap. Choudhury EBT 91:9-22, 92:8-12. The expansion joint places which had a gap or space were readjusted and reinstalled by Yonkers. Merolla EBT 43:13-23. The installation of the bent expansion plates was completed in the late fall of 2002. Merolla EBT 30:21-23.

In December 2002, the footwalk/bikeway was opened to the public. Merolla EBT 87:19-25; Menachery EBT 18:11-16. The incidents that are the subject of these actions took place [*4]between October 13, 2003, and October 18, 2005. All six plaintiffs maintain that their accidents and injuries were caused by the defendants' negligence "in the ownership, operation, management, maintenance, supervision, control, design, inspection, repair, construction and installation of the Williamsburg bicycle path," including "in causing, permitting and/or allowing unreasonably hazardous metal speed bumps to be placed at the subject location."

The plaintiffs in both actions allege that they individually suffered physical injuries when they were caused to fall off of their bicycles while riding over bumps on the bike path of the Williamsburg Bridge. Specifically, Mr. Fleck's accident occurred when he "hit the second speed bump and lost the air in the front tire." Gandhi Opp. in Fleck Ex. A, Carsten Fleck EBT (hereinafter fleck EBT). According to Mr. Fleck, the speed bumps on the bridge were about "six, seven centimeters high." Fleck EBT 23:9-22. Similarly, Mr. Chynsky's accident occurred when he "lost control of [his] bicycle after hitting a bump." Ghandi Opp. in Chynsky Ex. A, Daniel Chynsky EBT (hereinafter Chynsky EBT) 13:14-19. Mr. Chynsky further described the bump as "a deep bump coming up. It was like at least at the minimum two or three inches above the bridge raised so the bump was just an obstruction." Chynsky EBT 13:20-25.

Conclusions of Law

On a motion for summary judgment, the proponent has the burden in the first instance of submitting admissible evidence establishing its entitlement to judgment as a matter of law. CPLR 3212(b); GTF Mtkg, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965, 967 (1985). Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form which raises an issue of fact requiring a trial. Kosson v. Algaze, 84 NY2d 1019 (1995).

Contrary to Parsons' position, the fact that the proof in support of Yonkers' motion for summary judgment "was placed before the court by way of an attorney's affirmation annexing deposition testimony and other proof, rather than affidavits of facts on personal knowledge, is not fatal to the motion." Alvarez v. Prospect Hosp., 68 NY2d 320, 325 (1986); see also Muniz v. Bacchus, 282 AD2d 387, 388 (1st Dept 2001) ("There is no requirement that evidence be submitted by affidavit to prevail on a motion for summary judgment"). The question remains whether the evidence submitted by Yonkers in support of its motion establishes its prima facie entitlement to summary judgment.

The court will first address the cross-claims for contribution which Yonkers submits are barred by GOL section 15-108. GOL section 15-108(a) provides that where a release is given to a defendant in a multi-defendant lawsuit, it does not discharge any of the other defendants, but it reduces the claim of the releasor against the defendants by the greater of: (1)the amount stipulated in the release, (2)the amount of consideration paid for the release, or (3)the amount of the released defendant's equitable share of the damages. Pursuant to GOL section 15-108(b), a defendant who has been released is "relieve[d] ... from liability to any other person for contribution ... ." GOL section 15-108(d), enacted in 2007, further provides that a release not to sue shall be deemed a release under this section only if: (1)the plaintiff receives consideration greater than one dollar as part of the agreement, (2)the release completely or substantially terminates the dispute between the plaintiff and the released defendant, and (3)the release is provided prior to the entry of judgment. Subdivision (d) was proposed by the New York State Advisory Committee on Civil Practice to encourage plaintiffs to voluntarily release "ostensibly blameless defendants" without the fear of having their awards reduced pursuant to subdivision [*5](a). See Report of the Advisory Committee on Civil Practice, January 2006 at 43; see also Bonner, Outside Counsel, "Defense Counsel and Amendments to GOL §15-108," 8/17/2007 NYLJ 4, (col. 4). Accordingly, where no consideration or consideration of less than one dollar has been received by a plaintiff, GOL section 15-108 does not apply and regardless of whether a jury finds that the released defendant was at fault, plaintiff's award will not be reduced pursuant to subdivision (a). Similarly, where no consideration has been received, a released defendant cannot benefit from subdivision (b), but rather can be impleaded back into the case so that the non-released defendants can pursue a contribution claim. See Calise v. Heartland Medical Services, P.C., 18 Misc 3d 332, 334 (S Ct, Richmond County 2007); see also Shoot, Letters to the Editor, "GOL §15-108 and Removing Blameless Defendants From a Case," 9/17/2007 NYLJ 2, (col. 4).

The purported releases here, each entitled Stipulation Discontinuing Action With Prejudice, are annexed to the moving papers in both actions as Exhibit F. The stipulations, which are signed solely by the attorney for plaintiffs and counsel for Yonkers, state that the actions are discontinued with prejudice and without costs as to defendant Yonkers only. The stipulations do not specify whether any consideration was received by plaintiffs as part of the agreement. However, in her affirmation in support of the instant motions, counsel for Yonkers declared that settlement payments were made to plaintiffs and at oral argument, counsel for Yonkers had copies of the checks.

In addition to arguing that the stipulations of discontinuance do not meet the requirements of GOL section 15-108(d), Parsons argues that the stipulations of discontinuance are ineffective because they do not comply with CPLR 3217. CPLR 3217(a)(2) provides that a claim may be discontinued without a court order by the filing of a written stipulation signed by the attorneys of all parties. Here, the stipulations were not signed by all parties to the actions. Nevertheless, courts have held that a stipulation which discontinues "with prejudice" a claim against another party constitutes a release under GOL section 15-108, even where the stipulation does not conform to CPLR 3217. See, e.g., Tereshchenko v. Lynn, 36 AD3d 864 (2nd Dept 2007) (stipulation of discontinuance "with prejudice" only signed by plaintiff and one of the three defendants constitutes a release under GOL §15-108); Hanna v. Ford Motor Co., 252 AD2d 478 (2nd Dept 1998) (stipulation of discontinuance signed by the released defendant and not by the other two defendants in the action was intended to release defendant Ford from the action and thus constituted a release pursuant to GOL §15-108). Alternatively, despite the absence of a motion requesting such relief, the court can order the discontinuance of the action as against Yonkers pursuant to CPLR 3217(b). In light of the facts that plaintiffs discontinued their claims against Yonkers "with prejudice" and that "monetary consideration greater than one dollar" was received by plaintiffs as part of the agreement, the stipulations of discontinuance here constitute releases under GOL section 15-108. Accordingly, pursuant to GOL section 15-108(b), Yonkers is "relieve[d] from liability to any other person for contribution."

Of course, GOL section 15-108 is inapplicable to claims for indemnification. The principles of indemnification apply when one is held liable solely on account of the negligence of another. Guzman v. Haven Plaza Housing Development Fund Co., 69 NY2d 559, 567-8 (1987). Yonkers moves for dismissal of the cross claims for indemnification on the ground that there is no evidence of negligence on its part. In opposition, both Parsons and Gandhi argue that [*6]plaintiffs' accidents and resultant injuries were caused by Yonkers' negligence in the fabrication, installation and construction of the expansion joint plates and that if they were to be found liable it is only on account of Yonkers' negligence.

There being no proof that there was a contract between Yonkers and Parsons or between Yonkers and Gandhi or that Yonkers in any way agreed to indemnify Yonkers and/or Parsons, any cross-claims for contractual indemnity must be dismissed. The claims for common law or implied indemnification, however, require further analysis.

Through the affidavit and deposition testimony of Iftekhar Choudhury, an engineer previously employed by Gandhi and now employed by Parsons, it was established that a gap or space, which was not part of the design, was created between the expansion plate covers and the overlay during the installation of the covers by Yonkers. The gap resulted in Yonkers' having to readjust and reinstall the plates. This raises a question regarding the cause of the accidents. If the accidents were caused in whole or in part by improper or defective installation of the expansion joint plates, then some negligence could be attributed to Yonkers. Of course, should Parsons or Gandhi themselves be found liable due to their own negligence, common law indemnity is not a viable remedy. See Glaser v. M. Fortunoff of Westbury Corp., 71 NY2d 643, 646 (1988). Nevertheless, where there has not been a finding of negligence, summary resolutions of indemnification claims are premature. See Prenderville v. International Service Systems, 10 AD3d 334, 338 (1st Dept 2004) (Indemnification claims cannot be resolved summarily until a determination is made as to indemnitee's negligence); Gomez v. National Center for Disability Services, Inc., 306 AD2d 103, 104 (1st Dept 2003) (Summary resolution of indemnification claim premature where there remains a factual issue as to whether indemnitee was negligent); Wensley v. Argonox Const. Corp., 228 AD2d 823, 825 (3rd Dept 1996) (Motion for summary judgment on third party complaint denied as premature where no finding on negligence on the part of the indemnitor had yet been made). Accordingly, Yonkers' motion to dismiss the cross-claims for common law or implied indemnification is denied without prejudice.

It is therefore

ORDERED that the motions by Yonkers for summary judgment and dismissal of the cross-claims seeking indemnification and contribution by defendants Parsons Transportation Group of New York, Inc., d/b/a Parsons, Steinman, Boynton, Gronquist & Birdshal, Inc., and Gandhi Engineering, Inc. are granted to the extent that any claim by defendants Parsons and Gandhi for contribution or contractual indemnification is dismissed in both Carston Fleck et al. v. City of New York, et al., Index No. 403251/2004, and Daniel Chynsky v. City of New York, et al., Index No. 111540/200; it is further

ORDERED that in all other respects the motions are denied.

This constitutes the decision and order of the court.

Dated: December 8, 2008____________________________________

New York, New YorkMATTHEW F. COOPER, J.S.C.