Hoffman v Biltmore 47 Assoc., LLC

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Hoffman v Biltmore 47 Assoc., LLC 2012 NY Slip Op 32543(U) October 2, 2012 Sup Ct, New York County Docket Number: 108095/06 Judge: Debra A. James Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] 1 r* ' SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: DEBRA A. JAMES PART 59 Justice LEONARD HOFFMAN and ROSALIA HOFFMAN, Plaintiffs, -v- Index No.: 108095/06 Motion Date: 02/24/12 Motion Seq. No.: 10 BILTMORE 47 ASSOCIATES, LLC, MANHATTAN THEATRE CLUB, INC., THE BILTMORE THEATER CORP., THE BILTMORE THEATRE GR., INC., SWEET CONSTRUCTION CORP., BILTMORE THEATER INDEPENDENT MANAGER CORP., BILTMORE THEATARE, LLC., THE JACK PARKER CORP., BILTMORE TOWER, LLC, PARKER SECOND, LLC, PARKER THEATRE ASSOCIATES, LLC., and SWEET CONSTRUCTION of LONG ISLAND, LLC., Defendants. BILTMORE 47 ASSOCIATES, LLC, MANHATTAN THEATRE CLUB, INC., SWEET CONSTRUCTION CORP., BILTMORE THEATER INDEPENDENT MANAGER CORP., BILTMORE THEATRE, LLC, THE JACK PARKER CORPORATION, BILTMORE TOWER, LLC, PARKER SECOND, LLC, PARKER THEATER ASSOCIATES, LLC and SWEET CONSTRUCTION OF LONG ISLAND, LLC, TP Index No.: 591083/07 Third-party Plaintiffs, -w- -- FIRE AND MARINE INSURANCE CO., Third-party Defendants. I.CHECK ONE: "... .. . .. . . .. . . . . I 2. CHECK AS APPROPRIATE: MOTION IS: 3. CHECK IF APPROPRIATE: ... .., , .. -.. . CASE DISPOSED NON-FINAL Dl$POSlTlON 0 GRANTED DENIED GRANTED IN PART OTHER 0 SElTLE ORDER SUBMIT ORDER 0 DO NOT POST 0 FIDUCIARY APPOINTMENT REFERENCE [* 2] BILTMORE 47 ASSOCIATES, LLC, MANHATTAN THEATRE CLUB, INC., SWEET CONSTRUCTION CORP., BILTMORE THEATER INDEPENDENT MANAGER CORP., BILTMORE THEATRE, LLC, THE JACK PARKER CORPORATION, BILTMORE TOWER, LLC, PARKER SECOND, LLC, PARKER THEATER ASSOCIATES, LLC and SWEET CONSTRUCTION OF LONG ISLAND, LLC, STP Index NO.: 590494/09 Second Third Party-Plaintiffs -w- - GENERAL CONCRETE CONSTRUCTION, INC., FEINSTEIN IRONWORKS, INC., CORD CONTRACTING, INC., REACT INDUSTRIES, INC., REACT TECHNICAL, INC., REACT AC, AMERICAN FINANCIAL GROUP, FIREMAN'S FUND AND NATIONAL SURETY, INC., GREAT AMERICAN INSURANCE COMPANY, GREAT AMERICAN E&S INS. CO., AMERICAN INTERNATIONAL GROUP, AIG CASUALTY COMPANY, AMERICAN HOME ASSURANCE COMPANY, AMERICAN INTERNATIONAL 1 i FILED OCT 09 2012 STATE INSURANCE COMPANY, AXIS INSURANCE COMPANY, ALLIANZ INSURANCE GROUP, FIREMAN'S FUND INSURANCE COMPANY, NATIONAL SURETY CORPORATION, NEW YORK MARINE & GENERAL INSURANCE COMPANY and UNITED NATIONAL INSURANCE COMPANY, Second Third-party Defendants. The following papers, numbered 1 to 7 were read on this motion for summary judgment. Notice of Motion/Order to Show Cause -Affidavits -Exhibits Answering Affidavits - Exhibits Replying Affidavits - Exhibits Cross-Motion : Yes No(s). i No 5,6,7 [* 3] Upon the foregoing papers, that portion of Mass Electric Construction Co. 's ("Mass Electric") motion seeking summary judgment dismissing the cause of action asserted as against it to provided defense for defendants/third-party plaintiffs in the underlying personal injury action and f o r an alleged breach of its contractual obligation to procure insurance, is granted, but the motion is otherwise denied. That portion of defendants/first third party plaintiffs' Biltmore 47 Associates, Manhattan Theatre Club, Inc. Sweet Construction Corporation's ("Sweet") cross motion seeking to dismiss plaintiffs' cause of action based on a violation of Labor Law § 240 (1) is granted, as previously stipulated, and the remainder of t h e cross motion is denied. The indemnification provision of the agreement between Sweet, the construction manager for the p r o j e c t , and Mass Electric, its electrical subcontractor, provides for only potential indemnification, but does not include defense c o s t s . Mass Electric ' s not an insurer, and the contract of indemnity i to which it is bound, strictly construed, does not impose upon it a defense obligation comparable in breath to that ordinarily borne by an insurer; its duty to defend is no broader than its duty to indemnify [internal citations omitted]." PhiliDs Electronics North America (lst Dept 2 0 0 5 ) . -3- Gorp., Viacom Inc. v 16 m3d 2 1 5 , 215-216 [* 4] In reviewing the insurance documents provided with the papers, the court agrees with Mass Electric that it has purchased the general commercial liability insurance mandated by its agreement with Sweet. "The insurer's refusal to indemnify [defendantslthird-partyplaintiffs] under the coverage purchased by [Mass Electric] does not alter this conclusion." Perez v Morse Diesel International, I n c . , 10 AD3d 497, 498 ( l R t Dept 2004). Turning to the issue of contractual indemnification, the court finds that t h e indemnification provision appearing in the contract entered into by and between Mass Electric and Sweet is a broad one that provides f o r indemnification that arises o u t of Mass Electric's work, even if Mass Electric itself was not negligent. (1990), Brown v Two Exchanse Plaza Partners, 76 NY2d 172 Urbina v 26 Court Street Associates, LLC, 46 AD3d 268 (lst Dept 2 0 0 7 ) . Careful scrutiny of the indemnification provision shows that Mass Electric would have to indemnify Sweet in one of two instances: one, if Mass Electric were negligent, thereby causing the accident; or two, if the accident arose in connection with Mass Electric's work, regardless of Mass Electric's negligence. Although the court agrees with Mass Electric's contention that it cannot be found to have negligently supervised Hoffman while he was engaged in a common and ordinary activity -4- [* 5] (Consolidated Edison Company of New York, Inc. v Vilsmeier Auction Co., Inc., 21 AD3d 726 [lst Dept 20051; Hernandez v Board of Education of City of New York, 2 6 4 AD2d 709 [2d Dept 199911, it would still be obligated to indemnify Sweet if Hoffman's claim Electric p u r s u a n t to the terms of the contract.' In the case at bar, Hoffman was at the j o b site, working for Mass Electric, when he walked across the floor, carrying a ladder, to get from one work area to another. In interpreting insurance contract provisions providing coverage f o r injuries "arising out of work" at a job site, courts have consistently held that activities at the j o b site that are incidental to the actual work being performed "arise out of" such work; examples are : worker falling into a hole in the floor while walking back to a f i e l d office to obtain a can of paint (Hunter Roberts Construction Group, LLC v Arch Insurance ComDanv, 75 AD3d 404 [lstDept 20101) ; worker injured while entering the job site en route to work (Chelsea Associates, LLC v Laauila-Pinnacle, 21 'Alessio's second deposition does not establish that Mass Electric was performing the work that created either the hole or the debris. Alessio o n l y averred that Mass Electric was working in the area in and around the days surrounding the occurrence, and Hoffman definitively stated that Mass Electric was not working in that area on t h e day of t h e accident and the debris and tarp t h a t hid the hole from his view did not belong to Mass Electric. Hayes testified that Mass Electric provided the temporary lighting for the project, which included the area where the hole or debris were located. -5- [* 6] AD3d 739 [lstDept 20051); and worker injured while using the restroom facilities at the j o b site (Turner Construction ComDanv V Pace Plumbinq Corp., 298 AD2d 146 [IstDept 2 0 0 2 1 ) . The rationale behind these decisions is that in construing the phrase arising out of , the court must not look simply at the precise cause of the accident, but must considex: the general nature of the operation in t h e course of which the injury was sustained. David Christa Construction, Inc. v American Home Assurance ComDany, 59 AD3d 1136 ( 4 t h Dept 2009). In the case at bar, the broad indemnification provision in the contract between Mass Electric and Sweet stated that Mass Electric would indemnify Sweet for all claims of [its] employees ... for any matter whatsoever in connection with services and work performed under this contract . . . This court sees no reason why it should not apply the same reasoning in its interpretation of arising out of work as it would in defining in connection with Work. Since there is no question that Hoffman w a s working at the job site at the time of the occurrence, and was carrying a ladder from one area to another, the court concludes that his injuries arose in connection with his work for Mass Electric, pursuant to Mass Electric s c o n t r a c t with Sweet. However, even if Mass Electric might be obligated to indemnify Sweet for Hoffman s injuries, such obligation would not -6- [* 7] arise if it is determined that Sweet was in some way responsible for causing the dangerous condition that caused Hoffman's accident. 'Mass [Electricl's contention that the indemnification provisions of the contracts signed by [it and Sweet] are unenforceable pursuant to General Obligations Law 5 5 - 3 2 2 . 1 is unavailing. Where, as here, the provision provides for full indemnification, General Obligations Law § 5-322.1's proscription of indemnification is only applicable if the indemnitee is found negligent to any extent, Moreover, where the contractor's negligence has not been litigated and a triable issue of fact is raised, the contractor's request f o r summary judgment for contractual indemnification must be denied. Because the record raises questions of fact as to . . . S w e e t []Is negligence, the enforceability of the contractual indemnification provision cannot be decided at this time; therefore, the motions of Mass [Electric] ... and Sweet [I requesting a declaration as to the duties [of the parties are] appropriately denied [internal citations omitted] ./I Dept Auriemma v Biltmore Theatre, LLC, 8 2 AD3d 1, 12 (Isr 2011). Consequently, since Sweet was contractually bound to maintain the j o b site free from debris, there is a question of obligation, regardless of any alleged negligence on the part of Mass Electric. F o r the same reason, no party is entitled to summary judgment with respect to the common-law indemnification claim. "TO establish a claim for common-law indemnification, 'the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also -7- [* 8] -8- [* 9] plaintiffs' cause of action based on a violation of Labor Law § 240 (1) is granted and such cause of action is dismissed; and it Dated: October 2 , 2 0 1 2 ENTER : FILED .WT, 09 2012 -9-

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