Leon v SMC Constr. Corp.

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Leon v SMC Constr. Corp. 2013 NY Slip Op 30627(U) March 29, 2013 Sup Ct, New York County Docket Number: 109288/05 Judge: Eileen A. Rakower 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. NNED O N 4 1 2 1 2 0 1 3 ~ ~ [* 1] PRESENT: PART Ij : ! Justice Index Number 109288/2005 LEON, SEGUNDO vs. SMC CONSTRUCTION SEQUENCE NUMBER : 004 - . - . . . . - " INDEX NO. MOTION DATE MOTION SEQ.NO. SUMMARY JUDGMENT The following papers, numbered Ito Notice of MotionlOrder to Show Cause Answering Affidavits , were read on this motion tolfor - Affidavits - Exhibits I IN+). - Exhibits No(s). , ,i 3 No@). Replying Affidavits ":: j / 'i' 7 , (2: Upon the foregoing papers, it is ordered that this motion is 3. ]L ( u ..................................................................... CASE DISPOSED CHECK AS APPRQPRIA~E ........................... ~ Q T l O ~ r.1GRANTED 1s: DENIED CHECK IF APPROPRIATE: ................................................ 1 SETTLE ORDER . 1 1. CHECK ONE: 2. p+ ,ftV r I DO NOT POST /* ~~~~~~~~~~~ NON-FINAL DISPOSITION 1-1 GRANTED IN PART I. .IFIDUCI WY OTHER SUBMIT ORDER APPOINTMENT CI REFERENCE [* 2] 1h ird-Party PI ain t i ff, -against- SMC CONSlRUCTION COKPORATTON, Second 'Third-party Plaintiff, -against- SPECIALTY SERVICE CONTRACTXNG, INC., 'Third Third-Party Plaintiff; -against- 1 APR 02 2013 [* 3] * Fourth Third-Party P h i n tiff, -against- HON. ELEEN A. RAKOWER Plaintiff Segundo Leon ( Plaintiff ) asserts causes of actions for negligence and violatioiis ofNew York State Labor Law $200 and 24 1 (6) against defendants NY Presbyterian Hospital s/h/a Columbia Presbyterian 1lospital Medical Center ( NY Presbyterian) and defendant SMC Construction Corporation ( SMC ) for a back injury that he sustaincd while perlbrining asbestos abatement for Speciality Service Contracting Inc. ( Specialty Services ) at one ofNY Presbyterian s buildings, known as the 1Iarkness Pavilion on February 20, 2004. NY Presbyterian asserts third-party claims and cross claims against SMC for contractual indeinni fication, common law indemnification, contribution, and breach of contract. Both NY Presbyterian and SMC commenced third-party actions against Riehm Plumbing Group ( Rieliim ) for contractual indemnification, coiiimon law indemnification, contribution, and breach of coiltract. Plaintifrdid not bring a direct action against Kiehm. NY Presbyterian now moves (Mot. Scq. #4) for an Order, pursuant to C PLR 32 12, granting summary judgment iii favor of, aiid dismissing all claims and cross claims against it, or alternatively, granting N Y Presbyterian sumtnary judgment on its cross claims against SMC and third party Riehin for contractual indemnification. Plaintifl opposes. SMC does Iiot oppose the portion o f N Y Presbyterian which seeks dismissal of Plaintiff s Complaint, but opposes the portion that seeks sitinrnary judgment on its claims for contractual and common law indemnification, contribution 2 [* 4] and breach of contract against SMC, In support of its motion, NY Presbyterian submits the following: supporting affirmation of Kenneth J. Platzer, the pleadings, a copy of the contract entered into between SMC and NY Presbyterian on November 26, 2003 for the subject construction, a copy of the SMC/Riehm Pirrchaser Ordcr and Tndeimnification, transcripts of Plaintiffs depositions on May 9,2008 and January 20,201 0, transcript of dcposition of Vincent Caropreso, Assistant Vice President of SMC, on June 26, 2009, transcript ofdeposition ofThomas Pcpe, President ofRiehm, on July 23,20 IO, transcript of deposition of Christopher Johnson, project imanager at NY Presbyterian, on June 26,2009, transcript of deposition of Andrew Lettus, employee of Rielim, on October 15, 20 10. SMC also moves (Mot. Seq. #5) for an Order, pursuant to CPLR 32 12, granting summary judgment SMC, dismissing Plain tiffs CompI aint with prej idi ice, dismissing N Y Presbyterian s third-party claims and cross claims with prejudice, and granting SMC summary judginent on its third-party claiins against Riehin Plumbing and Riehin Corporation. Plaintiff opposes. NY Presbyterian opposes the portion of SMC s motion seeking to dismiss its third-party claims and cross claims. Kiehm cross moves for an Order pursuant to CPLR 3212: (1) dismissing Plaintifi s Complaint for failure to state an action undcr Labor I.aw §$241(6) and 200, and thus extinguishing any and all claims as against Riehm; (ii) dismissing SMC s third party complaint and N Y Presbyterian s fourth party coinplaiiit against Kiehrn for contractual and/or coinimn law iiidctnnification and contribution and breach of contract for failure to procure insurance; and (iii) dismissing SMC s third party complaint in its entirety pursuant to CPLR 3 126 and/or issuing spoliation saiictions against SMC. SMC and NY Presbyterian oppose the portion of which relates to dismissal of its third party action and claims. Plaintiff opposes Riehm s motion to the extent that it seeks to dismiss his Complaint, but takes no position on the branches of the instant motions concerning liability SMC, Presbyterian and Riehm, except that Plaintiff supports Riehm s argument that SMC is guilty of spoliation for its dcstructiori of daily work logs, At thc time of Plaintiff s accident and pursuant t o a Purchase Order and contract, NY Presbyterian had retained SMC as the contractor to perform thc rcnovation of tlic Otolaryngology Ikpartment, which was located on the 7 floor of 3 [* 5] the Harkness Pavilion. Pursuant to the contract, SMC was responsible for the reinoval of pipcs and dcbris on Harkness 7. SMC hired Kiehm as a subcontractor to perform thc plumbing work: in connection with the I-iarkncss 7 project. After asbestos was discovered, NY Presbytcrian retained Plaintiff s employer, defendantlthird party defendant Speciality Services, to perform asbestos abatement work on the scventh floor in the Harlcness Pavilion. On February 20, 2004, Plaintiff was employed by Speciality Services as a union asbcstos abatement workcr and was Speciality Services union shop steward. According to Plaintiffs testimony, Plaintiff was part o f a crcw that was performing asbestos abatement in coniiection with a renovation prqjcct. The abatement work was scheduled to begin on a Friday afternoon, aftcr all the other trades had left the site for the day. Thc work involved the usc of an air filter, which weighs approximated 100120 pounds. On the date of Plaintiff s accident, because there were stacked pipes in the room where the work was to be done, Plaintiff and his supelvisor decided to lift and carry the air filter over the stack of pipes. Plaintiff s supervisor slipped on a pipe, causing him to lose his grip. Plaintiff continued to hold the air filter up by himself, and injured his back as a result. Vincent Caroprcso, thc project manager for SMC, testificd that SMC had an office on the scventh floor at Harkness Pavilion and he was there daily. At his deposition on March 18, 20 10, Mr. Caropreso testified: Q: Did New York Presbyterian give you any notice of when or where Speciality Services would be performing its abatement workr? A: 1 don t recall them specifically tclling mc that, you know when and where. I m pretty surc they would have told Lis that we weren t allowed on the site at a ccrtain time. Caropreso testified that the renovation included the installation ofplumbing lines and that Riehm was hired to perform the plumbing scope of the project. Caropreso testificd that Kichm used 1 0-foot length pipes and observed Riehm using the pipes 4 [* 6] on thc seventh floor. Caropreso testified that a pyramid-stack of pipes is comincm, and is otic way that pipes are kept on a job site, and that the stacking of the pipes in this way is not dangerous. Caropreso did not know specifically if Riehin had stacked pipes on this job. Christopher Johnson, a project manager at NY Presbyterian until June 2004, testified to having overscen the renovation prqject in 2004. Me testified that he would go to Harkncss 7 most days. Johnson testi lied that NY Presbyterian contracted directly with SSC for the renioval of asbestos. He furthcr testificd to coordinating work being performed arid setting up time schedules: Q: Was there soiiieoiie who coordinated the work between SMC, the contractors and the asbestos removal company, Specid ty Services Contracting, Inc .? A: I don t understand what you mean by coordinatcd. Q: Well, did you set up the time schedule? You know, who would work where, when they should work, things of that naturc? A: Yes. Q: Who would that be? A: I would arrange the t h e schedules. I would coordinate thc time schedules. Johnson furthcr testified that ifhe saw an unsafe condition at the job site, he would notify SMC. Hc testified that he did not recall gctting any coiiiplaints about pipes being left on the job site of the subject projcct. l hoimas Pepe, president of Kiehm, testificd that Richin was hired by SMC to conduct work as a subcontractor of the subject renovation project in 2003-2004, Riehm s work includcd disconnecting plumbing, cutting and capping plumbing pipes and installing new piping and radiators. Pepe testified that Kielniu completed its radiator work on February 2 1, 2004, and started installing new plumbing in March 2004. Pepe testified that Riehin did not have water piping on the site of project in February 2004, and that water piping was delivered to the site in March or April 5 [* 7] 2004. Riehin has no records of wheii the water piping was ordored, paid for or deli vercd. Andrew Letus, an employee of Riehin, testified that he worked 011 the renovation prqject on the sevcnth floor of NY Presbytcrian. Letus did not recall wlierc Riehiri storcd pipes that were iiistalled on thc seventh floor. He testified that Riehin would receive I O foot long pipe for use on the scveiith floor, which would bc cut as needed. Hc did not recall if he obscrvecl those pipes being delivered to the seventh floor. Plaintifrs L A Labor Law $200 codiflcs the conimon law duty of the owner or employer to provide employees with a safe place to work. Labor Law $200 directs that the owner and general contractor owe a duty to assure that all workplaces be constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to those working there. l liisincludes the ways and approaches to the work v. area. (Casp~rsen La S d n Bros,, 253 N Y 491 [ 19301). 1Jiider Labor Law 5200, in addition to liability arising from the mcthods crnployed by a subcontractor, over which thc owner or general contractor exercises supervision and/or control, liability can also arise when the accidcnt is causcd by a dangerous condition at the worksitc, that was either created by the owner or gencral contractor or about which they had prior notice. h4ukuriirs v. Port Authority, 76 A.D. 3d 805, 808 [ I Dept 20101). It is well settlcd that a plaintiff necd not demonstrate a defendant s control or direction of his or her work to sustain a Labor Law $200/common law ncgligeiicc claim where the injury arises from a defective condition in the workplace, rather than the plaintiff s method ofperforming his or her work (SLT Urban v. No. 5 Times Sqzmre Development, LLC, 2009 NY Slip Op 3997, 2 [ 1st Dept. 20091) (citations omitted). However, no liability lies absent proofthat a defendant created the dangerous conditioii alleged to have causcd a plaintiff s accident or uiilcss the del endant has prior actual or constructivc notice o f the saiiie, Makui-iits v. Port Authoriw, 76 A,D. 3d 805, 808 [ I st Dept 20 101. N Y Presbyterian, the owner of thc subject premises, contends that it is not liable under Labor Law 5200 because it did not supervisc, direct or control the work of Plaintiff or his employer or SMC. It also alleges that it lacked notice of thc [* 8] dangerous condition. SMC contends that dismissal ofPlaintiff s 1,abor Law $200 claim is warranted on the basis that the asbestos abatement work being performed by Plaintiff, an employee for Speciality Serviccs, at thc time ofthe accidcnt was not within the scopc of SMC s contract with the Hospital and SMC was not a general contractor or statutory agent with regard to the ongoing asbestos abatement work that Plaintiff was performing at the t h e of the accident. Alternatively, SMC argues that there is no cvidence that SMC directed or controlled Plaintiffs work, the stacked pipes did not constitute a dangerous condition and even if they did, SMC had no notice of thein. N Y Prcsbyterian and SMC both argue lack of control and supervision over Plaintiffs work. However, Plaintiffs claim is that the stack of pipcs was a dangerous condition at the work site, not that his work was performed in an unsafe manner, and therefore Movants arguments are not dispositive. (See genernlly Keating v Nanzret BoardofEducation, 40 AD3d 706,708-709 [2d Dept 20071 [where plaintiff s injuries stemmed not from the manner in which the work was performed, but rather from a dangerous condition on the premises, general contractor was liable in common-law ncgligence and Labor Law 8 200 when it had control over the work site and actual or constructive notice of the same]; Thomas v CIqifee, 24 AD3d 749, 75 1 12d Dept 20051; Mzirphy v Colunzbin University, 4 AD3d 200,202 [ lstDept 20041 [to support linding of a Labor Law Ej 200 violation, it was not necessary to prove general contractor s supervision and control over plaintiff because the injury arose from the condition of the work place created by or known to contractor, rather than the method of plaintiff s work]). Here, Defendants have failed to meet their initial burden of establishing that they did not Iiavc control over the work site and actual or constructive notice of the alleged dangerous condition given their presence and roles in connection with thc ongoing renovation on the seventh floor of Harkness 7 wliere Plaintiffs work was being performed. Thus, SMC and NY Presbyteri,m have failed to establish as a matter of law that they are entitled to summary judgment on Plaintiff s Labor TAW 200 Claim. Plaintiffs T&or Law 24016;) Claim 7 [* 9] 1,abor Law $24 l(6) imposes a non-delegable duty upon owners and contractors to provide reasonable and adequate protection and safety to workcrs engaged in the inherently dangerous work of construction, excavation or demolition (see Rizzzrto v L.A. Wengcr Conir. Co., Inc., 91 N.Y.2d 343,348 119981). Liability may be imposed under this section even where thc owner or contractor did not supervisc or control the worksite (sec id.). In order to establish a cause of action under 5 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of a rule or regulation of the Cornniissioner of thc Department of Labor ( lndustrial Code ) that applies given the speciiic facts and circumstances of the accident, and that sets forth a concretu standard of conduct (see Long v hbrest-b ehlhaber, 55 N,Y.2d 154, 160 [ 19821. [Ojnce it has been alleged that a concrete specification of the [Industrial] Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused [the] plaintiffs irijury. (Rizzuto, 91 N.Y.2d at 350). If demonstrated, then the owner or contractor is vicariously liablc without regard to his or her fault (see id.).The owner or contractor may, of course, raise any valid defense to the imposition of vicarious liability under section 24 1(6), iricluding contributory and comparative negligence (id.), In order to prevail on a claim that an owner or a contractor breached the nondelegable duty imposed by Labor Law $24 1(6), plaintiff must prove that a specific provision of the Industrial Code was violated (Yellen v. Rockaway Rcnlty Assocs., 243 A.D.2d 338, 339 [lst Dept. 19971) (citations omitted). Plaintiffs Hill of Particulars alleges violations of Industrial Code 8523-1.5, 23- 1.7(e)(1) & (e)(2), and 23-1.30, In opposition, Plaintiff states that it has liniitcd its claims to a violation of 2-.()2. 317e() Industrial Code Ij23-1.7(e), that section provides, in pertinent part, (e) Tripping and othcr hazards. (1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp prqjections which could cut or puncture any person shall be removed or covcred. (2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from 8 [* 10] accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed. See DeSimone v. S truchm Tones, Jnc., 306 A.D. 2d 90, 9 1 [ 1 st Dept 20031 (holding Liability for the harm sustained by plaintiff in the March 10, 1998 accident was properly assigned Structure Tone pursuant to Labor Law 24 I(6) bascd upon Structure Tone s demonstrated failure, in violation of hdustrial Code ( 12 NYCRR) 4 23-1.7 (e) ( 2 ) , to dischargc its nondelegable duty to keep plaintiffs work area free of scattered materials, such as the pipcs upon which plaintiff tripped. ). Both SMC and NY Presbyterian contend that the stack of pipes is not covered by 12 NYCRR 23-1.7(e)(2) because it was an integral part of the construction. Howcvcr, the parties have failed to demonstrate that the stack of pipcs was inherent to thc asbestos abatement job that Plaintiff was performing. As Plaintiff points out in his opposition, NO evidence has bccn presented that the pipcs were going to replace the pipes in the wall and ceiling that were the subjccts ofthe asbestos removal, or that they had any other direct or indirect connection with the abatement work. Indeed, SMC has failed to demonstrate that the stack of pipes had any connection at all with the renovation project. Furthermore, an issue of fact is created by Riehm s evidence that it did not deliver or handle the 18-inch pipcs and Presbyterian and SMC s failure to provide an explanation for why the pipes were on the premises if not being used by Riehm. SMC and NY Presbyterian also argue that the alleged breach of Labor Law 241(6) was not the proximate cause of Plaintiffs injuries. They contend that Plaintiff s alleged negligence in attempting to carry the air filtcr over the pipes was the sole proximate causc, This, however, is a question offact. See Derdiarinn v. fiklix Contmcting C o p , 5 1 N.Y. 2d 308, 3 12 (1980) ( AS a general rulc, the question of proximate cause is to be decidcd by the finder offact. ). Contractual Indemnification Claims SMC seeks dismissal of NY Presbyterian s claim against it for contractual indemnification on the basis that Plaintiff s accident was not caused by any negligcncc on the part of SMC, nor did they accident arise out of SMC s work under its contract [* 11] with The Hospital. NY Presbyterian opposes. NY Presbyterian seeks summary judgment on its cross claims against SMC and third party Kiehm for contractual indemnification. NY Presbyterian alleges that it is entitled to contractual indenmification from SMC and/or Riehin for any liability as to Plaintiff . The indemnification provision in the N Y PresbyteriadSMC contract provides: the Contractor shall indemnify and hold harmless the Owner ... from and against claims, damages, losses and expenses, including but not limited to attorneys; fees, arising out of or resulting from performance of the Work, provided that such claim is attributable to bodily injury ... but only to the extent caused by negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable regardless of whether or not such claim . . . is caused in part by a party indemiiilied here. Here, both SMC s motion seeking dismissal of NY Presbyterian s contractual indemnification claim and NY Presbyterian s motion for summary judgment on this claim i s premature, as issues of fhct remain as to SMC s negligence, if any, and the extent to which it controlled the work site. Issues of fact therefore also preclude SMC s niotion dismissing NY Presbyterian s claim for common law indemnificatioii.(Pen..i v, Gilbert Johnson Enters., I d t d , 14 AD3d 68 1 12 Dept. 20051) ( In the case of common-law indemnification . , . [wlhere the proposed indemnitee s liability is purely statutory and vicarious, conditional suminaryjudginent for common-law indemni ficatioti against a proposed indemnitor is premature absent proof, as a matter of law, that the proposed indemnitor was cither negligent or exclusively supervised and controlled plaintiffs work site. ). Breach of Contract Claims SMC also seeks dismissal of NY Presbyterian s claim for breach of contract for f d u r e to procure insuraiicc naming NY Prcsbytcrian as an additional insured as the contract contains no obligation to name NY Presbyterian as an additional insured. SMC states that, Although not specifically set forth as a separate cause of action in [* 12] The Hospital s Third Party Complaint, the WHEREFORE clause of the Hospital s Third-Party Coniplaint states that The IIospital seeks a judgment for breach of contract from SMC. NY Presbyterian does not address this issue. l hus, to the extent that NY Presbyterian asserts a claim of breach of contract against SMC for failure to procure insurance, such a claim is hereby dismissed. Riehni s Cross Motion to SMC s motion Both NY Presbyterian and SMC commenced third-party actions against Kiehm, SMC s plumbing subcontractor on the job, seeking contractual and/or common law indemnification from Riehm, SMC s plumbing subcontractor on thc job, claiming that the pipes that caused the accident must have been placed there by Riehm. Plaiiitiff has asserted no direct causes of actions as against Riehrn, Rielini cross moves, seeking to dismiss SMC s third-party Complaint and NY Presbyterian s fourth party Complaint, on the basis that there is no evidence that it supplied or handled thc pipes in connection with the Project which allcgedly caused Plaintiffs supervisor to fall and led to Plaintiffs injuries and thus no basis for contractual and/or conimon law indemnification. Pursuant to the SMURiehm Purchase Orders, the relevant terms of the indemnification clause are set as follows: [Riehm] covenant and agree to fully defend, protect, indemnify and hold harmless SMC [,I the owner of thc building in which the work is performed . . . f rom and against each and every claim . . . (including any related to injury to people or property loss or damagc is due or claimed to be do [sic] any negligent of yours or ours) caused by arising from or in any way incidental to the performance of thc work hereunder. , .7 Pursuant to both Purchase Orders entered into bctween Kiehrn and SMC, SMC required to Riehm to indemnify SMC for each and every claim. . . caused by, arising from or in any way incidental to the performance of the work hcreunder. Rielim alleges the evidence demonstrates that: (1) pipes involved in Plaintiff s accident, as described by Plaintiff on two occasions, are not the same pipes used by Riehin in connection with its plumbing work; (2) Riehin did not store any pipes on 11 [* 13] I-Iarkness 7 preceding Plaintiffs accident; (3) Riehm did not conimencc its rad iator work on Harkriess 7 during February 2004 until the day after Plaintiffs accident and such work did not involve the use of or storage of any pipes; (4) Riehm did not commence its plumbing work until almost one month after Plaintifi s accident occurred and no pipe deliveries were made to the site in conncction with its plumbing work until March or April of 2004. At his first deposition on May 9,2008, Plaintiff testified that the subject pipes were approximately 30 inches in diameter. At his sccond deposition, lie changed the dimensions to approximately 1 /2 to 2 feet in diameter. Plaintiff first testified that there werc approximately 9 to 12 pipes stacked in a pyramid about three levels high, a d then testified that there wcre 6 to 8 pipes stackcd, rising to the level ofthe spacc between his waist and chest. Thomas Pepe, president of Riehm, testified that Riehm was hired by SMC to conduct work as a subcontractor of the subject renovation project in 2003-2004, Riehm s work included disconnecting plumbing, cutting and capping plumbing pipes and installing new piping and radiators. Pepe testified that Riehin completed its radiator work on February 2 1, 2004, and started installing new plumbing in March 2004, Pepe testified that Riehm did not have water piping on the site of project in February 2004, and that water piping was delivered to the site in March or April 2004. Ilowcver, Pepe testified that the pipes to be installed by Riehm wcre copper pipes, approximately three quarters of an inch in diameter, which were cut subsequent to delivery. P e p testified that Reihm s work at Ilarkncss 7 did not involve in any way cutting, capping or supplying the pipes that were equivalent to any of the diameter measurements testified by Plaintiff to be the subject of his accident. Mr. Lettus, Riehm s project manager, testified that the only pipes that would have been delivered to the site included vent line pipes, all bearing a standard IO-foot length, and none could be mistaken for the pipes that allegedly caused Plaintiff s injuries. In opposition, SMC and NY Presbyterian make inany arguments; however, they fail to present any evidence in adinissiblc form supporting their claims that questions of fact exist as to Riehm s allegcd liability. For example, SMC contends by their attorney affirmation that Plaintiff, who was born in Ecuador, did not understand his own testimony when he testified utilizing 12 [* 14] the imperial system of measurement, rather than the mctric system. Furthermore, SMC cites to portions of Mr. Lettus testimony; however, a conipkte reading demonstrates that Mr. Lettus testified that Riehm did not store any pipes on Harlcness 7 in January or February 2004. Morcver, Mr. Pepe testijied that the in January and February 2004, Riehm s designatcd area for storage of its equipment was in the Milstejn Pavilion of The Hospital, not the Harkness Pavilion. Thus, SMC fails to prescnt a question of fact concerning Riehm s storage of pipes in Harkness Pavilion prior to February 20,2004. In addition, SMC s other contentions, such as the fact that a permit was issued to Rielim on January 12,2004 for the performance ofadditional plumbing work is not sufficient to raise a question of Fact as to the whethcr such work was actually performed. Furthermore, while SMC argues that an issue of fact is raised because Riehm was the only contractor on site that used pipes in connection with its work, Mr. Caropeso, SMC s project manager, testified that SMC hired approximately 6-8 trade contractors to perform work at the site including plumbers and HVAC contractors, to perform HVAC duct modifications and installation of water, waste and vent lines on Harlcness 7. Similarly, NY Presbyterian fails to prescnt any evidence in admissible form to create a question of fact concerning Riehin s alleged liability, Accordingly, Riehm has established its entitlement to summary judgment dismissing SMC s third party complaint andNY Presbyterian s fourth party complaint against Kiehin for contractual and/or common law indemnification and contribution. Furthermore, Riehin seeks dismissal of N Y Presbyterian s breach of contract claim on the basis that the evidence establishes that the Riehm did in fact obtain an insurance policy that would afford coverage to NY Presbyterian as an additional insured as long as its liability arose out of Riehm s ongoing operations, which N Y Presbyterian has failed to establish. Given NY Presbyterian s failure to establish evidence to support a finding of liability on Kiehm s part, Kiehni is entitled to summary judgment on NY Presbyterian s breach of contract claim. Wherefore, it is hereby 13 [* 15] I 5 ORDEIIED that def endant/fourtll third-party plaintiff New Yor .-Prcsbyterian Hospital s/h/a Columbia Presbytcrian Medical Center s motion for suxntnaTyjudgment is denied; and it is further ORDEREL) that defendant/third third-party plaintiff SMC Construction Corp. s motion for summary judgment is granted only to the extent that NY Presbyterian s claim for breach of contract for failure to procure iiisurance as against SMC is dismissed; and it is furthcr O R D E E D that Riehin Plumbing Corp, s motion for summary judgment is granted, and SMC s third party complaint and N Y Presbyterian s fourth party complaint against Riehin Plumbing Coi-p. is dismissed, and the Clcrlc is directed to enter judgment in favor of Kiehin Plumbing Corp. accordingly. This constitutes the decision and order of the court. All other relief requested is denied. DATED: March 29,20 I3 EILEEN A. RAKOWER, JySC:----L-h NEW YORK COUNTY CLERK S OFFICE 14

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