Almonte v Cauldwell-Wingate Co., LLC

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Almonte v Cauldwell-Wingate Co., LLC 2012 NY Slip Op 32653(U) October 5, 2012 Supreme Court, New York County Docket Number: 110365/2010 Judge: Lucy Billings 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. ANNED ON I012212012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK LUCY BlLLINGS, PRESENT: I P P d*Y.W, COUNTY PART . e Justice INDEX NO. Index Number : 11036512010 ALMONTE, WILSON MOTION DATE vs MOTION SEQ. NO. CAULDW ELL-W INGATE Sequence Number : 003 . MOTION CAL. NO. DISMISS PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits Answering Affidavits - U z I-t *.. 3-4 - Exhibits 5-(1 Replying Affidavits ( I C LI P UNFILED JUDGMENT this judgment has not been entered bv the Countv Clerk and notice of entry cannot be served based her&. T O obtain entry, counsel or authorized representative must appear in person a the Judgment Clerk s Desk (Roomt )416)., - Dated: - 4 - 4 4 &h*dd IS I r fW-95 .{. :L:m;rrs J.S. C. I-- k!JL,, Check one: (< FINAL DISPOSITION ~NON-FINAf%SPOSlTlON -1 E Check if appropriate: a ___ SUBMIT ORDER/J UDG. DONOTPOST REFERENCE 0 SETTLE ORDER /JUDG. [* 2] WILSON ALMONTE and BELKIS ALMONTE, Index No. 110365/2010 Plaintiffs - against - CAULDWELL-WINGATE COMPANY, LLC, Defendant CAULDWELL-WINGATE COMPANY, LLC, Index No. 5 9 0 6 9 7 / 2 0 1 0 Third P a r t y Plaintiff - against - ASM MECHANICAL SYSTEMS, BRADSHAW MECHANICAL CO., INC., TOTAL SAFETY CONSULTING, L.L.C., DONALDSON INTERIORS, INC., W5 GROUP LLC, AABCO SHEET METAL CO., INC., and LEND LEASE (US) CONSTRUCTION INC. f/k/a BOVIS LEND LEASE, INC., Third P a r t y Defendants DECISION AND ORDER APPEARANCES: For Defendant-Third P a r t y Plaintiff Jessica L. Rothman E s q . Ingram Yuzek Gainen Carroll & Bertolotti, LLP 250 Park Avenue, New York, NY 10177 For Third P a r t y Defendants ASM Mechanical Systems and AABCO Sheet Metal Co., Inc. Debbie-Ann Morley Esq. Safranek, Cohen & Krolian 1 Water Street, White Plains, NY 10601 alrnonte.142 1 [* 3] F o r Third Party Defendant Bradshaw Mechanical Co., Inc. Peter M. Canty Esq. Cdnway, Farrell, Curtin & Kelly, P.C. 48 Wall Street, New York, NY 10005 LUCY BILLINGS, J.S.C.: I. BACKGROUND Third party defendant Bradshaw Mechanical Co., Inc., has moved to dismiss the amended third party complaint and all crossclaims against Bradshaw Mechanical Co., based on the failure to state a claim for relief under third party defendant ASM Mechanical Systems' subcontract with Bradshaw Mechanical Co. C.P.L.R. 5 3211(a) (I) and (7). In a stipulation dated March 29, 2 0 1 2 , Bradshaw Mechanical C o . withdrew its motion insofar as it sought to dismiss cross-claims by ASM Mechanical Systems ( A S M ) . No other third party defendant opposes the motion. The parties do not dispute that Bradshaw Mechanical Co. employed plaintiff, who claims injury while engaged in his employment at-a construction site where his employer was a subcontractor. Defendant-third party plaintiff Cauldwell-Wingate Company, LLC, seeks contribution and indemnification for any liability to plaintiff from Bradshaw Mechanical Co. These third party claims may not be maintained against plaintiff's employer absent a "grave injury" to plaintiff or a written contract providing for contribution or indemnification by his employer to third party plaintiff. N.Y. Workers' Comp. Law § 11; Flores v. Lower E. Side Serv. Ctr., 4 N . Y . 2 d 3 6 3 , 3 6 7 ( 2 0 0 5 ) ; Tonkinq v. Port Auth. of N . Y . & N.J., 3 N.Y.3d 486, 490 (2004); Hansen v. 510 Manhattan Affordable HOUS., 2 A . D . 3 d 274 (1st Dep't 2003). almonte.142 2 [* 4] See Rodriques v , N & S Bldq. Contrs., Inc., 5 N.Y.3d 427, 431-32 (2005);,*Portelli T r u m p EmDire State Partners, 12 A . D . 3 d 280, v. 281'(1st Dep't 2005); Petrillo v. Durr Mech. Constr., 306 A.D.2d 25, 26 ( 1 s t Dep't 2003); Pena v. Chateau Woodmere Corp., 304 A.D.2d 442, 444 (1st Dep't 2003). The parties a l s o do not dispute that plaintiff claims he sustained a fractured wrist, which is not a grave injury. There is no contract directly between third party plaintiff and Bradshaw Mechanical Co. Third party plaintiff contracted directly with ASM, which in turn subcontracted w i t h Bradshaw Mechanical Co. Third party plaintiff relies on that subcontract between ASM and Bradshaw Mechanical Co., which the parties stipulate the court may consider authenticated and admissible for purposes of this motion. C.P.L.R. § 3211(a)(l). E.q., v. Metropolitan Life Ins. Co., 5 N.Y.3d v . Kinberq, 50 A.D.3d 512, 5 1 3 (1st Dep't 561, Goldman 571 (2005); 2008); Cleaners, Inc. v . Stanley Fastenins Sys., L.P., Kinberq Hicksville Dry 3 7 A.D.3d 2 1 8 (1st Dep't 2007); Zanett Lombardier, Ltd. v. Maslow, 29 A.D.3d 495 (1st Dep't 2006). In that subcontract, " t h e Subcontractor agrees to indemnify and hold harmless the Contractor (insert any additional parties), their officers, directors, agents, employees and partners" for a l l claims arising from, in connection with, or as a consequence of plaintiff's work on the construction site. Aff. in Supp. of Peter M. Canty Ex. F Rothrnan in Opp'n Ex. B 6. 7 6; A f f . of Jessica L. No "additional parties" are inserted; nor does the contract anywhere refer to third party almonte.142 3 [* 5] plaintiff; nor does it claim to be an officer, director, agent, employee, or partner of the contracting party ASM. 11.' THIRD PARTY PLAINTIFF'S CLAIMS AGAINST BRADSHAW MECHANICAL CO. Third party plaintiff describes i t s e l f as the general contractor (GC) for the construction project: "hired by the General Services Administration f o r the performance of certain general contracting services for the infrastructure upgrade of the Thurgood Marshall U.S. Courthouse" in New York County. Rothman Aff. in Opp'n 7 4. Third party plaintiff then contracted with ASM for the mechanical heating, ventilation, and air conditioning (HVAC) work on the project. ASM then subcontracted with Bradshaw Mechanical Co. to perform part of this work. Third party plaintiff points o u t that this subcontract between ASM and Bradshaw Mechanical Co. provides for "indemnity in the event liability is imposed against the Indemnitees without negligence and solely by reason of statute, operation of law or otherwise." Canty Aff. in Supp. Ex. F 7 6 ; Rothman Aff. in Opp'n Ex. B 7 6. Therefore third p a r t y plaintiff maintains that where the subcontract provides for indemnification of the "Contractor," it must refer to third party plaintiff, because as the GC it may be liable to plaintiff without negligence and solely by reason of vicarious liability under New York Labor Law §§ 240(l) and 2 4 1 ( 6 ) for contractors' and subcontractors' acts o r omissions. Labor Law §§ 240 (1) and 2 4 1 ( 6 ) I however, impose absolute liability on construction site owners and general contractors "and their agents f o r any breach of the statutory duty which has almonte.142 4 [* 6] proximately caused injury." Sanatass v. Consolidated Inv. Co., I n c . , 10,N.Y.3d 333, 338 (2008). See Ferluckai v. Goldman Sachs & Co., 12 N.Y.3d 316, 320 (2009); Walls v. Turner Constr. Co., 4 N.Y.3d 861, 863-64 (2005). Thus ASM, which contracted with that, as the Bradshaw Mechanical Co., qualifies as a llContractorll GC's agent under Labor Law §§ 240(1) and 241(6) , may be liable to plaintiff without negligence and solely by reason of vicarious liability under the statutes f o r acts or omissions by ASM's subcontractor Bradshaw Mechanical Co. Walls v. Turner Constr. CO., 4 N.Y.3d at 863-64; Burke v. Hilton Resorts Corp., 85 A.D.3d 419, 420 (1st Dep't 2011); Pacheco v. Kew Garden Hills Apt. Owners, Inc., 73 A.D.3d 578 (1st Dep't Inc., 7 0 A.D.3d 487, 488 (1st Dep't 2010) ; Weber v. Baccarat, 2010)- The contract between third party plaintiff and ASM that third party plaintiff itself presents authorizes ASM to supervise and control a l l HVAC work, which third party plaintiff GC delegated to ASM, and which included that work performed by ASM's subcontractor Bradshaw Mechanical Co. Burke v. Hilton Resorts Corp., 85 A.D.3d at 420; Pacheco v . Kew Garden Hills Apt. Owners, I n c . , 73 A.D.3d 5 7 8 ; Weber v . Baccarat, Inc., 70 A.D.3d at 4 8 8 . Even if third party plaintiff retained "concomitant or overlapping authority to supervise" the entire infrastructure upgk-ade of the courthouse, including the HVAC work, third party plaintiff's authority does not negate ASM's authority. Weber v. Baccarat, Inc., 70 A.D.3d at 488. Whether ASM actually supervised plaintiff is also alrnonte.l.42 5 [* 7] irrelevant. I . ASM was third party plaintiff's statutory d agent, even if ASM "did not exercise that supervisory authority with' respect to plaintiff's particular task." Burke v. Hilton Resorts Corp., 85 A.D.3d at 420. Nor has third party plaintiff shown that plaintiff's injury did not arise from the HVAC work third party plaintiff GC delegated to ASM as the GC's agent. Moreover, the subcontract between ASM and Bradshaw Mechanical Co. provides for indemnity to only one "Contractor," particularly since no lladditional parties" are inserted where specifically permitted. Although the subcontract refers to more than one llIndemnitees,ll they encompass the I1officers,directors, agents, employees and partners" of the "Contractor,lt Canty Aff. in Supp. Ex. F f 6; Rothman in Opp'n Ex. B 7 6. The contracting parties' intent to confer a direct benefit on a party that is neither a signatory to ASM's contract with Bradshaw Mechanical Co., nor named in the contract, must be unambiguous; otherwise the contract must be construed to avoid reading in a duty to indemnify that statutorily Bradshaw Mechanical Co. did not bear. Bradley v . Earl B. Feiden, I n c . , 8 N.Y.3d 265, 274 (2007); Tonkinq v. Port Auth. of N.Y. & N.J., 3 N.Y.3d at 490; Suazo v . Maple Ridqe Assoc., L.L.C., 85 A.D.3d 459, 460 (1st Dep't 2011); Fresh Del Monte Produce N.V. v. Eastbrook Caribe A . V . V . , A . D . 3 d 415, 4 1 8 40 (1st Dep't 2007). Not only the intent to indemnify, but also the scope of the indemnification," the number and identity of the indemnitees, must be "unmistakably clear." Fresh Del Monte Produce N.V. v. Eastbrook Caribe A.V.V., 40 almonte.142 6 [* 8] A.D.3d at 418. Thkrd party plaintiff's insistence that the term IlCoritractorIl in the subcontract is susceptible of more than one interpretation is but a suggestion that a contractual intent to confer a benefit on third party plaintiff and impose a duty on Bradshaw Mechanical Co. is ambiguous, rather than unambiguous. If the subcontract's indemnity provision is ambiguous, then it may not be construed to provide indemnification except in the context where the obligation is unmistakable. E . q . , Port Auth. of N.Y. & Tonkinq v. N.J., 3 N.Y.3d at 490; Hooper Assocs. v. AGS Computers, 74 N.Y.2d 487, 492-93 (1989); Gonclaves v. 515 Park Ave. Condominium, 39 A.D.3d 262, 263 (1st Dep't 2007); Mikulski v. Adam R. West, Inc., 78 A.D.3d 910, 912 (2d Dep't 2010). As the subcontract provides for indemnity to one contractor and unquestionably provides for indemnity to ASM, the subcontract does not provide for indemnification of third party plaintiff, which contracted with ASM and not with Bradshaw Mechanical Co. 111. CONCLUSION Consequently, the court g r a n t s the motion by third party defendant Bradshaw Mechanical Co., Inc., to dismiss the amended third party complaint and all cross-claims against Bradshaw Mechanical Co., except any cross-claims by third party defendant ASM Mechanical Systems. The amended third party complaint and the cross-claims, other than by ASM, fail t o state a claim for relief against Bradshaw Mechanical almonte.142 7 Co. under ASM's subcontract [* 9] with Bradshaw Mechanical Co. and under Workers' Compensation Law § 11. DATED: C.P.L.R. § 3211(a) (1) and ( 7 ) October 5 , 2 0 1 2 Y ' L fwC 5 V LUCY BILLINGS, J.S.C. LUCY BILLINGS J.S.C. almonte.142 8

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