Miller v Carpentier Props. Corp.
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Miller v Carpentier Props. Corp. 2012 NY Slip Op 33122(U) December 19, 2012 Supreme Court, Suffolk County Docket Number: 26085/2009 Judge: William B. Rebolini 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] ShOlt Foml Order SUPREME COURT - STATE OF NEW YORK LA.S. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Robert Miller, Index No.: 26085/2009 Plaintiff, Motion Sequence No.: 001; MOT.D Motion Date: 7/27/12 Submitted: 9/12/12 -againstCarpentier Properties Corp. f/le/a Carpentier Construction Corp., 780 Broadway, LLC and 770-780 Broadway LLC, Defendants. Carpentier Properties Corp. f/kla Carpentier Construction Corp., 780 Broadway, LLC and 770-780 Broadway LLC, Third-Party Plaintiffs, Motion Sequence No : 002; XMG Motion Date: 7/27/12 Submitted: 9/12/12 Attorney for Plaintiff: Rosenberg & Gluck, LLP 1176 Portion Road Holtsville, NY 11742 -againstCabinetry By Castle, Inc., Third-Party Defendant. Clerk of the Court Attorncy for Defendants, Third-Party Plaintiffs, Carpentier Properties COQ).f/k/a Carpentier Construction Corn., 780 Broadway, LLC and 770-780 Broadway LLC: Andrea G. Sawyers, Esq. 3 Huntington Quadrangle, Suite 102S Melville, NY 11747 Attorney for Third-Party Defendant Cabinetry Bv Castle. fne-: Jacobson & Schwartz, LLP 99 Jericho Turnpike, Suite 200 Jericho, NY 11753 [* 2] Miller v. Carpentier Properties. Index No.: 26085/2009 Page 1 ('t al. Upon the followlTlg papers numbered I to 35 read upon thlS motion and cross motion for summary judgment: Notice of Motion and supporting papers, ! - 17: Notice of Cross MotIon and supporllng papers. 18 - 20: 24 - 30; Answenng Affidavits and supporting papers, 2:[ - 2::L ReplY111g Affidavits and supportmg papers, 31 - 33; 34 - 35; it is ORDERED that this motion by tlmd-party defendant Cabinetry By Castle, Ine. for an order pursuant to CPLR 12]2 granting summary Judgment 111 favor dismissing the third-part y complaInt ItS is determined as set forth herein; and it is further ORDERED that this cross motion by defend:.mts/thlrd-pany plaintiffs for an order pursuant to CPLR 3212 (e) granting partial summary Judgment 11ltheir favor on thclr tlmd-pany claim for breach of the lease provision rcquinng thIrd-party defendant to purchase liabil1ty insurance nal1l11lg defendants as additional Insureds IS granted. This is an act10n to recover damages for inJuries allegedly sLlstamed by plalJ1(lff on Apnl 10, 200S while employed as a cabinet maker by th1J'd-party defendant Cabinetry By Castle, Inc. (Cabinetry). Plaintiff had Just fimshed loading a customer's truck with fUl1llture when he tripped over a raised concrete curb (wing wal I) and fell into the load] ng dock area at prelTIlSeS located at 7702 Broadway, Holbrook, New York. The premises was owned by defendant 770-780 Groad\vay LLC and leased by defendant Carpentier Properties Corp. to third-party defendant Cabinetry. PlailltiH alleges that defendants were negllgent in, among other th111gS,causll1g, creating or permitting a dangerous condition to eXist by allowlllg a raised concrete curb to project beyond the edge of (he loading area, I'ailing to paint or highlight the raised concrete curb, falling to repair and/or replace a ratl1l1g around the loading area after having actual notice that I( was missing, fa1l1l1gto install a Ch:'l111t the end of the loading area, fatllllg to provide safe walking areas, and failing to post a Wa1l1111gigns. s Del'endants commenced a third-party actIon against Cabinetry alleging a first cause of action for common-law Illdemlll ficatlon, a second cuuse of action for contnbutlon, a Ihlrd cause of action for contractual Indcmntrication, and a fourth cause of action to recover for breach of a lease proviSIOn requlrlng Cabinctry 10 have In cllcct a comprehensive general JiabllJty Tllsur:.l1lcepolicy naming defendants/third-purty plaintiffs as additional insureds. ThIrd-party defendanl Cablnelry now moves for sumnlary judgmenllll Its favor dismiSSIng the thtrd-pany compJalllt on the grounds (hat the contractualll1dcll11l1 fication proVISions of the lease contravene (Jeneral OhlJgations Law ~ )-121, and that II cannot. be found liable inasmuch as the respllnsThi Iity forconstruc( Ion, maIntenance and repair of the alleged defective conditions of the curb ,111d r,lliings rcm:uned solei Y WIth defendants under the lease terms. The submiSSIons in support of (he motion Include the pleadings, plaintllTs bill of partIculars and amendeJ bIll of purticulars, a three-year lease agreement commenung December [, [998 between Carpcntier PropertTes Corp. as landlord and Cabinetry as tenant, portions of the deposltlon transcripts of pla111til{ Richard [* 3] Miller \C. Carpentil..'l· Properties. ct al. Index No.: 26085/2009 Page 3 Carpentier and Michael Tutton on behalf of Cabinetry, and black and white photographs of the accidenl local ion idenli fied by plainti ff at his deposition. In opposition to the mOlion, defendanls/third-pany plaintiffs contend thal the depositIOn testimony reveals differing versions ofho\V plaintiff fell that raIse issues of fact as to whether the condition of the railing \Vas a factor in plaintifrs accident and whether Cablllctry was negligent in fadlllg to provide plallltifr WIth a safe place to work by exposing him to the open and obvious tripPlllg haz.ard of the curh when it railed to direct the truck to park directly in front of the garage door rather th<l1l arallel to it. They also contend that the lndemni fication cluuse is enforceable when p read together with insurance procurement clause orthe lease. Plamti ff testi fied at IllS deposition on December ]4, 2010 that he had been working for Cabinetry for 2] years, that Cabinetry had been at the subject location since 2000, and that the accident occurred on a sunny day at approximately 11:30 a.l11. or 12 p.m. after he had finished loading the back of a truck together with Tutton. Plaintiff explained that the loading dock was within 20 to 30 feet of the garage door ohhe building and ran parallel to the building. The loading dock was a deep rectangular area of concrete, deeper near the garage door, and the side farthest from the building had a raised curb that angled down at the point that it met the apron of the garage driveway. The curb had a horizontal railing wilh vertical posts. The edge of the deep end of the loading dock, from the end of the metal railing to Ihe garage door, had no railing or chain. Plaintiff also explalllcd thaLlhe loading dock was not used as a loading dock and that a dumpster was located at the deep end of the loading dock near the garage door. Plamtiffalso testified that prior 10his accident the truck was parked parallel to the loading dock curb with the back oflhe truck near the cnd oflile raised curb. I-Iestated that he turned away (rolll the rear ofthc truck to walk tow·ards the building and when his right foot hit the raised, angled, end portion of the curb, hc tripped and fell onto the dumpster and then onto the ground in the loading dock area. TUllon testified at his deposition on .June 27, 2011 that he is the preSident ofCabl11ctry and that on the date of plalilti Irs accident, he was standing approximately two feet away from plainti ff and facmg plainti frwhen he observed plainti ff step backward, lose his balance and raIl into the load111g dock. Plaintiff further testi lied Ihat the portion orthe railing and posts that extended to the angled eJge or the curb wcre missing and argued that had they been presenl he would not havc rallcn. Tuttoll testified that the first and second vertical posts of the railing were nenltowards the shallow end of tile loadmg dock, no portion orthe railing was missing, and that he first noticed the condition allhe limc ofplaintirfs aCCident. According to Tutton, the landlord was responsible for repairing the railing and its pOSlS and had done so many times prior to this incident. Tutton also testified that the curb and railmg posts were never painted and that signs were never posled in said area. Carpentier testified at his deposition on April 21, 201lthat he is president ofCarpenticr Properties Corp., that on the date of the accident 770-780 Broadway LLC O\vned the subject premises. and that said premises was leased by Cabinetry pursuant to the subject lease. Tutton [* 4] :"liII('r \'. Carpl'n1i('r Prnpe,·ties. ('1al. Ind('x No.: 26085/2009 llage -I testified that Cabinetry had been a tenant at the subject address for 10 or I I years. Carpentier and Tutton testi fied at their depositions that the subject lease was extended and \Vas in ef1ect at the time ofplulIltiff's accident. Carpentier testified that the sleel pipe railing around the loading dock had been changed by himsel I'or his repairman marc than once prior1o plainti ff's accident because the railing had been hit by a vehicle. In addition, he testified that the railing had been down for more than a month prior to plaintiff's accident, that he was aware that the top rail was missing and that the first vertical post was bent, and that he had been waitll1g for the repairman to fix it. Carpentier also testified that it was his responsibility to repair the r<:llling pursuant to the tellllS orthe lease. The second paragraph of the lease indicates "That the Tenant shall take good care of the premises and shall, at the Tenant's own cost and expense make all repairs except structural repairs provided such structural repairs were not caused by negligence or carelessness of the Tenant, his agents, employees, licensees and lllvitees in which event the Tenant is to make such repaIrs at Tcnanl[']s own cost and expense on demand ..." Paragraph 28 oftbe rider to the lease provides that "Tenant shall indemnify Landlord against and save Landlord hannless from any liability (including counsel fees and expenses) to and claim by or all bellal f of any person, firm, govenlmental authority or corporatIon for personal lllJury, death or property damage or for any olher cause (including, without lImitatIon, those which may be based upon the negligence, active, passive or statutory, of Landlord) arislllg (a) from the use by Tenant of the demised premises or from any work or thing whatsoever done or omitted to be done by Tenant, its agents. contractors, employees, licensees or invitees, and (b) from any breach or default by Tenant orand under any of the terms, covenants and conditions of this Lease." Puragraph 31 oflhc nder to the lease provides "That throughout the term hcreoC the Tenant agrees to carryall necessary insurance 1ll connection with his business to save the Landlord harmless from any damages whatsoever and the Tenant specifically agrees to take out, maintnin and pay for public liability insurance protecting the Landlord us well as himsel r, to the extent or $ 1,000,000.00 single limit. If the Tenant fails to obtain such policies, the Landlord may obtuin them and add the premium cas! to the rent. next falling due, which amount shall be paid by the Tenant as additional rent. A commercial lease negotiated between Iwo sophisticated paJ1ies who include a broad indemni fication provision. coupled with an insurance procurcment requirement is enforceable under Gcncral Ohligations Law § 5-321 (se(' Great Northem IllS. Co, v Imerior COllstr. Corp., 7 NY3d 412.857 NE2d GO. 823 NYS2d 765 [2006]; see a/so Melldieta l' 333 Fifth A1IC. A.ull, 65 AD3d [()97. 885 NYS2d 350 12d Dept 2009]). Thus, it has been held that "[wJhcre ... a lessor and lessee freely enlcr into an indemnification agrccmcnt whereby they use insurance to allocate the risk or liahilityto thlrd-partics bctween thcmselves, General Obligations Law § 5-321 does not prohihit indclllnity" (Great Non!Jem Ins. Co. 1', Inleriol' COllstr. Corp., supra at 7 NY3d 419,823 NYS2d 765 ). [* 5] Miller v. Carpelltier "rollerties, Index No.: 26085/2009 Page 5 el aL lethc purposc orthc indcmnity clause, however, is to exempt the landlord from 1iabtllty to the vIctim for the landlord's own negligl,;llCe, then the indemnity clause violates General Obligations Law ~ 5-321 (see /llendieta \' 333 Fifth AI'e. Assn, 65 AD3d 1097,885 N'{S2d 350 [2d Dept 1009]; see II/SO Castano v Zee-Jay Real(r Co., 55 AD3d 770, 866 NYS2d 700 [2d Oert 2008]). Moreover, a landlord may not circumvent General Obligations La\v 5-321 merely by lI1serting a lease provision requiring the tenant to obtain insurance (see BreakawlIY Farm, Ltd. l' WlIl'd, IS AD3d 517,789 NYS2d 730 [2d Dept 200Sj; seca/so Grllp!tic Arts Supply, Inc. )' Raynor, 9] AD2d 827, * 4SS NYS2d liS r 4th Del't 1082]). Here, paragraph 28 orthe rider to the lease IS unenforceable pursuant Law· 5-321 because it attempts to relieve the landlord of its responsibility a result of its own negllgence (see Ben Lee Distributors, fllc. v Halstead 72 AD3d 715, 899 NYS2d 301 [2d Oept 2010J; see a/so Rego v 55 Leone * to General Obligations for damages cnused as Harrison Partnership, LllIlC, LLe., 5(i AD3d 748,871 NYS2d I69[2d Dcpt 2008], Wolfe I' Long Is, Power Autlt" 34 AD3d 575, 824 NYS2d 390 [2d Dept 2006J; Breakaway Farm, Ltd. l' Ward, 15 AD3d 5\7, 789 NYS2d 730). Therefore, that portion of the motion by tlmd-p3rty defendant Cabinetry for summary Judgment dismissing the thml-party claim for contractual indcmnification is grantcd (see l/adzilta.'WllOl'ic l' 155 East 72lld Street Corp" 70 AD3d (,37,896 NYS2d 83 [2d Dcpt 2010]). The principle of common-law or implied indemnification pell11its a party who Ius been compelled to pay f()r the \vrong of another to recover from the wrongdoer the damages the pa!1y paid to the Injured pmiy (see An'emlal" Trizechahll Corp., 98 AD3d 699, 950 NYS2d 185 [2d Dept 2012]; Belief/cur v Newark Beth Israel ,Met!. 01'.,66 AD3d 807, 888 NYS2d 8] [2d Dept 2009]). An award ofsllmmary judgment on a elaIm for common-law Indemnification is appropriate only' where there are no triable issues of I~lctconcernlllg the degree of fault attributable to the parties (see /lrtlj;ll1U/i I' Tis/mum Real(r & COllst,.. CO.,IIlC., 68 AD3d 1027,891 NYS2d 462 [2d Dept 2009-1; COlfllCI' Wilt(fTohier Estat(!s Developers, IllC., 3\ AD3d 484, 818 NYS2d 546 [2d DCpl 2006]). The proffered deposition tcsti Illony raises factuallssues as to whether the cause of"plainti frs fall was solely due to a structural defect not caused by the tenant Cabinetry for which the landlord would be responsible under the lease. or due to a structural defect caused by thc tenant Cabinetry, or a rcsult ofthc bi1ure to make nOll-structural repairs, such as painting or placlllg waming signs, thereby prccludll1g the a\vard of sUlllmary judgment to third-pi.ll1y defendant Cabinetry dismissing the third-party claim for common-lavv' indemni llcation as premature (see Powell v CVS Jerusalem N. Bel/mort!, LLC, 71 AD3d ()S5, 896 NYS2d 139 [2d Dept 20 IOJ; see also Watters I' R.D. B/"tIllCh A.\·. ¢ ¢. o("s., LP, 30 AD3d 40S, 31 G N YS2c1 193 [2d Dept 200(i]). In ac1c1Jtion,since therc arc issues of j~lct as to who was rcspOl1 51 b Ie for thc accldcnt, an award 0 r summary.i udgmelll d ismi ssi ng the lh If(lparly claim fi)r contribution is dClllcd (.':>'ec Araglt1u!i I' Tislll1ulII Realty & COllstr. Co., Inc., ()i) AD3d 1027,391 NYS2d 4()2 [2d Dept 200(1). M orco vcr, tl1IreI-purty defendant Cabllletry hli1ed to subm it any proof dClllollstratlllg that It procured insurance that complied with the lease n:quircmcnts. The subject lease required thmj-party defendant Cabinetry to ··take out, l1li.llntalll and pay for public liability insurance protccting thc [* 6] Milkr v. Carpentier Properties. Index No.: 26085/2009 Pagl' 6 l't al. Landlord as \vell as himself to the extent of.5 1,000,000.00 single limit." Therefore, that portion of the motion by tlmd-party defendant Cabinetry for summary judgment dismissing the fourth cause of action of the tlmel-party complalilt is dellied (see Boxer v Metropo/it{{ll Tramp. Autll., 52 AD3d 447,859 NYS2d 709 [2d Dept 200S]; see a/so Clwellee.hmg v KUI1IGang, /11('., 22 AD3d 441,806 NYS2d (,212d Dcpt 2005]). Defendants/third-party plaintiffs cross-move for partial summary judgmcnt on the fourth cause of action of the third-party complaint on the grounds that Cabinetry breached that portion of the lease that required it to purchase liability insurance naming defendants as additional insureds. They mcorporate by reference all of the exhibits of the motion lIlcluding the pleadmgs and the lease agreement. Thml-party defendant Cabinetry opposes the cross motion as inadequate 111 that the arrirmation in suppol1 fails to specify the lease proviSIOns involved, fails to argue the manner of their applicabJiity, and fails to cite any casc law. In addressing the merits of the cross motion, Cabllletry contends that its president, Tutton, did purchase lIability insurance through IllS carrier PenI1sylvallla Lumbennens Mutual Insurance Company with an additional insured endorsement for the landlord subject to conditions. Cabmetry notes that the additlOnal insured endorsement (LUM 125) clearly states that any coverage provided under the policy is excess to other available coverages. Cabinetry submits the declaration pages oCthe commerCial general insurance polley issued to Cabinctry during the relevant period and additional msurcd endorsements of s,ud policy. Defendants/third-party plaintiffs argue that although the additional insured endorsements submitted by third-party defendant Cabinetry properly name the owner of the prcnllSes, 770-780 Broadway Ave., LLC, as an additional insured, the endorsements arc undated such that it is unclear whether they were effective at the time or plainti frs accident, and the endorsements Indicate that additional lllsured coverage is exccss, contrary to the requirements of the lease. In addition, dcCendants/third-pany plaintiffs submit portions or the deposition transcripts of plall1tiCf and Carpentier, the complete dcposition transcript oCthe deposition transcript 0 fMichael Tutton, a copy o fa certi Ikate orJiability lllsurance with Cabinetry as a named insured and 770-780 Broadway A vc., LLC, and as the certificatc holder, and the declarations pages oCthe commercial general insurance policy issued to Cabilletry during the relevant period with additional insured endorsements. In reply, third-pal1y defendant Cabinetry argues that Tutton did obtaill insurance and that the delendants were named as acklltlonal insureds. "A p<Jrty seek ing S 1I1llllUlry udgll1ent based all an alleged fa Ilure to procure Insurance nam ing J that party as an additional lilsured ll1ust demonstrate that a contract proviSIOn required that sllch lIlsurance be procured und that the provision \vas not complied with "(Rodriguez I' Savoy 80m Park Assoc. Ltd. Partnership, 304 AD2d 738, 739, 759 NYS2d 107 [2d Dept 2003]; .l"ce KillJley)' G. W. f.isk Co., I"c., 76 NY2d 215, 557 NYS2d 283 [1990]; DiBuono~' Abbey, LLC 83 AD3d 650, 652, 922 NYS2d I()1 [2tl Dcr! 20] II; Keelan v Sivan, 234 AD2d 516, 5] 7, 651 NYS2d 178 [2d Dcp! 1906 J). A contractual provision that requires that a party be named as an additlOl1al insured in a liability policy has been interpreted to mean that the additionalll1sured is insured for all liability arising out of the actlvltles covered by the agreement (see Ceroll ~'Rector, 224 AD2d 475, 638 [* 7] i\.Iiller v. Carpclltit\r Propel·ties, et al. I Jlde'>:No.: 26085J2009 Page 7 NYS2d 47() [2ei DepL 19%j}. "Addltional insured" is a recognized ttnn in ll1suran(.·ccontracts. WIth an understanding crucial to our cOllcluslOn in this case_ As cases bave recognii',cd. the "\Vell~ulldcrstood meaning" of the term is "an 'entity cnjoYlllg the same protection as the named lllsurcd'" (Del Bello l' Gel/eral Ace. Ills. Co., 185 AD2d 691,692,585 NYS2d 918 [1992], quoting Rubin, Dictionary ofInsurance Te1l11S [Barron's 1987]; see Peckel' Iroll 1VOJ'ks 7 (~lNeJ1! York, Ille . ¢' Traveler's Ins. Co., 99 NY2d 391. 393. 756 NYS2d 822 [2003]). Under the aJorcmentlOncd terms of the lease, dclendants signified, and third-party defendant Cabinetry agreed, that Cablllctry's carrier. not defendants', would provide detendants with primary coverage on the risk (see Peckel' /rOil Works of New York, Inc. II Trm'e!er's 11Is. Co., 99 NY2d 391, 393-394, 756 NYS2d 822; WillialJl Floyd School Dist. II Maxller, 68 A03d 982, 986, 892 NYS2d 115 [2d Dept 2009]). Although the additional insured endorsement submitted by third-party defendant Cabinetry jmbcates that 770-780 Broadway Ave . ¢ LLC was named as an additional insured to the commercial general liability policy that it obtained covering the subject premises, a related endorsement indicates that "[a]ny coverage provided hereunder shall be excess over other valid and collectible insurance available to the additional insured whether that other lllsurance is primary, excess, contingent or rrovided on any other b3sts." Here, defendants/third-party plaintdTs made a prima facie showing of enti.llement to judgment as a maller of law, and third-party defendant Cabinetry failed to present any evidence in oppositlon establishing its compl1ance with the te1l11S paragraph 31 of the rider to the lease of oh1Jgatmg it to obtain liability insurance thaLprovided primary coverage to defcndantsiHmd-party p hunti ITs(see Boxer I' Metropolitall Trtlllsp. Autlt., 52 AD3d 447, 859 NYS2d 709 [2d Dcpt 2008J; Cltaehee .Iullg v Kum Gang, IlIc. ¢ 22 AD3d 441,806 NYS2d 62 [2d Dept 2005J; Taylor v G(lIllletf Co., 303 J\D2d 397, 760 NYS2d 47 [2d Dept2003J;sccalso Peeker Iron WorksofNeJt.' York, Illc. l' Trm'e!er's IllS. Co., 99 NY2d 391, 7R6 NE2cl863, 756 NYS2d 822 [2003J; William FloydSchoo/ Dist. I' Maxller, 68 AD3d 982. 892 NYS2d 115 [2d Oept 2009]). Therefore, defcndants/thi I'd-party p lainil ffs arc cnti tled to SUllllllaryjudgment 011that portion 0 r thei r th iI'd-party camp lainl lor breach of contract fix ral1ure to procure insurance as rcqlllfed by the lease (see Boxer I' Metropolitan Trtll1sfJ.Auth., 52 AD3d 447, 859 NYS2d 709 [2d Ocpt 2008]; see also 11ldwusteglll v 666 5tll AI'e. Ltd. Partllersllli). 52 AD3d 447.725 NYS2d 627 [2001]; Tay/or I' GalJnett Co., 303 A02d 397. 7()ONYS2d 47). ( Dated' ;'" L (' HON, WILLIAM FINAL I)ISPOSITION NON-FINAL 'ie' ", J./l.: £'/' B, RIWOLINI, J,S,C ., '.0. r:. I, DISPOSITION ',t" '\.0 I, \_(
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