Accardi v Tishman Interiors Corp.

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Accardi v Tishman Interiors Corp. 2013 NY Slip Op 32040(U) August 30, 2013 Supreme Court, New York County Docket Number: 103626/2008 Judge: Shlomo S. Hagler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx and Westchester County Clerks' offices. 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. SCANNED ON 91412013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART: PRESENT: Hon. Shlomo S. Hacller 17 Justice AUGUSTINE ACCARDI, INDEX NO.: Plaintiff, 103626/2008 - against TISHMAN INTERIORS CORPORATION, et a/, Defendants. THIRD-PARTY INDEX No.: 590672/2008 TISHMAN INTERIORS CORPORATION, et a/, Third-party Plaintiffs, -against- DECISION and ORDER MICHAEL MAZZEO ELECTRIC CORP., Motion Seq. No.: 001 Third-party Defendant. Motion by Plaintiff for Partial Summary Judgment on Labor Law 9 240(1) Claim Papers Numbered Plaintiffs Notice of Motion for Partial Summary Judgment on Labor Law Q 240(1) Affirmation of Plaintiffs Counsel in Support of Motion with Exhibits 1 through 7 Affirmation of Defendantsmhird Party Plaintiffs Counsel in Opposition to Motion . . with Exhibits Aand B .................................................................................................. Reply Affirmation of Plaintiffs Counsel in Support of Plaintiffs Motion ....................................... Transcript of Oral Argument of November 26, 2012 ..... .......... ............... F..~...L 1 ..E ..D ~ Cross-Motion: dNo 1 2 3 4 5 i 0 Yes 1 SEP 0 4 2013 NEW YORK COUNTY CLERKS O w $ 3 Upon the foregoing papers, it is hereby ordered that PlaintiWs Motion for partial summary judgment (motion sequence 001) is granted as set forth in the attached separate written Decision and Order. Dated: August 38, 2013 New York, New York Check one: Motion is: 42lmdvMbrt++ Hon. Shlomo S. Hagler, J.S.C. 0 Final Disposition d Granted Check if Appropriate: 0 Denied /- 0 SETTLE ORDER 0 DO NOT POST Non-Final Disposition 0 Granted in Part 0 Other Jw 0 SUBMIT ORDER 0 REFERENCE [* 2] Index No. 10362612008 -againstTISHMAN INTERIORS CORPORATION, TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, TISHMAN CONSTRUCTION CORPORATION OF MANHATTAN, TISHMAN CONSTRUCTION CORPORATION, VERIZON NEW YORK INC., VERIZON NEW YORK INC., f/Ma NEW YORK TELEPHONE REALTY CORPORATION, NEW YORK TELEPHONE REALTY CORPORATION, VERIZON NEW YORK INC., f/k/a NEW YORK TELEPHONE COMPANY and NEW YORK TELEPHONE COMPANY, . FILED I il Defendants. NEW YORK, TISHMAN CONSTRUCTION CORPORATION OF MANHATTAN, TISHMAN CONSTRUCTION CORPORATION, VERIZON NEW YORK INC., VERIZON NEW YORK INC., f/Ma NEW YORK TELEPHONE REALTY CORPORATION, NEW YORK TELEPHONE REALTY CORPORATION, VERIZON NEW YORK INC. f/Ma NEW YORK TELEPHONE COMPANY and NEW YORK TELEPHONE COMPANY, Third-party Plaintiffs, -against- Third-party Index No. 59067212008 DECISION and ORDER Motion Seq. Nos.: 001 & 002 MICHAEL MAZZEO ELECTRIC CORP., Third-party Defendant. HON. SHLOMO S. HAGLER, J.S.C.: In this action, plaintiff Augustine Accardi ( Accardi or plaintiff ), a union journeyman electrician, seeks to recover damages for personal injuries that he sustained on July 14, 2005 [* 3] ( accident date ), when he fell from a ladder while working at a construction site located at 140 West Street in downtown Manhattan ( the premises ). In motion sequence number 00 1, plaintiff moves for partial summary judgment against all of the named defendants on the issue of liability with respect to his Labor Law 9 240( 1) claim. In motion sequence number 002, all of the named defendantshhird-party plaintiffs move for summary judgment against plaintiffs employer, third-party defendant Michael Mazzeo Electric Corp. ( Mazzeo ), on their cross claim seeking contractual indemnification, including attorney s fees. Motion sequence numbers 00 1 and 002 are consolidated for disposition. BACKGROUND On the date of the occurrence, the premises were undergoing reconstruction to repair damage resulting from the events of September 11,2001. Defendant Verizon New York, Inc. ( Verizon ) is the owner of the premises. Verizon had contracted with Tishman Construction Corporation of New York ( Tishman Construction ) to be the construction manager on this reconstruction project. Defendant Tishman Interiors Corporation ( Tishman Interiors ) was the project manager for the construction manager. Tishman Interiors, as agent for Verizon, had entered into a contract with third-party defendant Mazzeo to perform certain electrical work at the premises. At the time of the accident, plaintiff was performing electrical work on the eighth floor of the premises. According to his deposition testimony, plaintiff had begun working for Mazzeo only one or two days prior to the accident, and had been sent to perform electrical work at the premises that day for the first time. Plaintiff testified that, when he arrived at the site, he was assigned to work with another journeyman electrician employed by Mazzeo named Vladimir. Plaintiff testified that -2- [* 4] Vladimir took him to the eighth floor of the premises where they were to perform a wire pull. The task required that wires be pulled through electrical tubing to a box located approximately one foot above the ceiling level, or about 11 feet off the ground. In order to perform the work, Vladimir had obtained an eight-foot A-frame ladder for plaintiff to use. Vladimir set up the ladder for plaintiff, and then left to go to the other end of the wire pull to feed the wires. Plaintiff testified that the ladder looked fine to him at the time. Plaintiff testified that after Vladimir had left the area, plaintiff proceeded up the eight-rung ladder and waited until Vladimir tugged on the jet line. Plaintiff then pulled the wire through the tubing until approximately 10 inches of wire came out of his end of the electrical box. After completing this task, plaintiff began to come down off the ladder to inform Vladimir that the wire had been pulled through. Plaintiff testified that, as he was descending from the sixth to the fifth rung of the ladder, the ladder twisted and came out from under him, causing plaintiff and the ladder to fall to the floor. Plaintiff testified that he fell first onto his right shoulder, after which his buttocks and left leg hit the floor. Plaintiff testified that, following his fall, he rolled around on the floor in pain for approximately 10 minutes before pulling himself together, getting up, and walking over to where Vladimir was working to inform him of the accident. It does not appear that anyone else witnessed the accident. After informing Vladimir of his fall, Vladimir asked plaintiff if he wanted to go to the hospital or to go downstairs and report the accident. Plaintiff told Vladimir that he would rather wait and see how he felt towards the end of the day, as he had just returned to work and didn t want to lose more time. The two then continued to work through the day connecting the electrical outlets. Plaintiff testified, however, that his condition only worsened as the day progressed, so that night he -3- [* 5] went to the emergency room at Riverview Hospital. At the hospital, X-rays were taken and plaintiff was informed that no bones were broken. Plaintiff thereafter made an appointment to see an orthopedist for the pain in his right shoulder, left knee, and lower back. Plaintiff did not return to work at the site. On March 11, 2008, plaintiff commenced the instant action against Tishman Interiors, Tishman Construction, Verizon, and the other named Tishman and Verizon entities (collectively TishmadVerizon or defendants ), asserting causes of action for common-law negligence and violations of Labor Law $5 200, 240(1), and 241(6). TishmdVerizon thereafter commenced a third-party action against Mazzeo seeking common-law and contractual indemnification and/or contribution. Mazzeo then asserted its own cross claims against Tishman/Verizon for indemnification and/or contribution. Plaintiff now moves for partial summary judgment against Tishmaflerizon solely on the issue of liability with respect to his Labor Law $ 240( 1) claim. TishmanNerizon move for summary judgment against Mazzeo with respect to their claim for contractual indemnification including attorney s fees. DISCUSSION The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York Univ. Med. Ctr., 64 NY2d 85 1, 853 [ 19851). The burden then shifts to the motion s opponent to present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact (Mazurek v Metropolitan Museum ofArt, 27 AD3d 227,228 [lst Dept 2006); see also Zuckerman v Ct ofNew Yurk,49 NY2d 557,562 [ 19801). If iy -4- [* 6] there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223,23 1 [ 19781). Plaintiffs Motion for Partial Summary JudPment Under Labor Law 8 240(1) Labor Law 5 240( l), also known as the Scaffold Law, provides, in relevant part: All contractors and owners and their agents . . , in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed Labor Law 5 240( 1) was enacted to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 8 1 NY2d 494, 501 [ 19931). In order to accomplish this goal, the statute places responsibility for safety practices and safety devices on owners, contractors, and their agents, who are best situated to bear that responsibility (Ross, 81 NY2d at 500). The statute has been liberally construed to achieve this purpose (see Lombardi v Stout, 80 NY2d 290,296 [ 19921). To succeed on his Labor Law 5 240( 1) claim, plaintiff must show both a violation of the statute (i.e., that the owner or contractor failed to provide adequate safety devices) and that the statutory violation was a proximate cause of the injuries sustained (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35,39 [2004]; Blake v Neighborhood Hous. Servs. of N Y. City, 1 NY3d 280, 287-289 [2003]). It is well settled that failure to properly secure a ladder to insure that it remains steady and erect while being used, constitutes a violation of Labor Law 5 240( 1) (Cuentus -5- [* 7] v Sephora USA, Inc., 102 AD3d 504, 504 [lst Dept 20131, quoting Schultze v 585 W 214th St. Owners Corp., 228 AD2d 38 1, 38 1 [ 1st Dept 19961). Here, plaintiff has established prima facie entitlementto summaryjudgment as a matter of law through his uncontroverted deposition testimony and affidavit that the unsecured ladder on which he was working suddenly twisted out from under him as he was descending, causing him to fall and sustain injury (see Fanning v Rockefeller Univ., 106 AD3d 484,484-485 [ 1st Dept 20131; Krejbich v Schimenti Constr. Co., Inc., 94 AD3d 668 [ 1st Dept 20121). TishmadVerizon argue that plaintiffs motion for summary judgment should be denied because the accident was unwitnessed and plaintiffs deposition testimony on the issue of damages shows a pattern of misrepresentation and falsehood sufficient to raise an issue of fact as to plaintiffs credibility. Specifically, defendants note that over plaintiffs 30-year career as an electrician, i.e., between 1975 and 2005, plaintiff made 37 other workers compensation claims, and that on a number of these claims, plaintiff lost significant amounts of time from work. Defendants note, however, that when plaintiff was asked about those claims at his deposition, plaintiff testified that he was unable to recall the incidents or particulars about the injuries he sustained on those claims. At the same time, plaintiff was able to recall vaguely other incidents in which he lost no time from work. Defendants argue that it strains credibility that plaintiff was unable to recall a single incident in which he missed a significant amount work, while he was able to recall incidents where no work was lost. Defendants argue that this selective recall raises an issue of fact as to plaintiffs credibility requiring a determination by the trier of fact whether or not the accident happened. Therefore, under the doctrine offalsus in uno, defendants posit that plaintiffs motion for summary judgment should be denied. -6- [* 8] The doctrine of falsus in uno allows the trier of fact to disregard, in part or in whole, the testimony of a witness who has wilfully testified falsely as to any material fact (see, e.g., DiPalma v State o f New York, 90 AD3d 1659, 1660 [4th Dept 201 13). The doctrine is based upon the principle that one who testifies falsely about one material fact may well have testified falsely about everything. Assuming the doctrine is applicable, defendants have not identified a particular material fact to which plaintiff is alleged to have testified falsely. As defendants acknowledge in their opposition papers, the fact that plaintiff was the sole witness to his accident does not, by itself, preclude an award of summary judgment in his favor (see Perrone v Tishman Speyer Props., L.P., 13 AD3d 146 [ 1st Dept 20041). Rather, once plaintiff has established his prima facie case, it is the defendants burden to offer evidence, other than mere speculation, to undermine the plaintiffs showing of entitlement to judgment as a matter of law, or present a prima facie issue regarding the plaintiffs credibility as to a material fact (Melchor v Singh, 90 AD3d 866,869 [2nd Dept 201 13; see also Fox v H&Mkennes & Mauritz, L.P., 83 AD3d 889, 891 [2nd Dept 201 11). Here, defendants have not identified anything in the record that might contradict plaintiffs version of events (see Gontarzewski v City of New York, 257 AD2d 394 [lst Dept 19991). Specifically, defendants have proffered no evidence to show that plaintiffs deposition testimony concerning the manner in which the accident occurred is either inconsistent with any other of his accounts of the accident, or contradicted by other evidence (see Noah v 270 Lufayette Assoc., 233 AD2d 108 [ 1st Dept 19961; Klein v City o New York, 222 AD2d 35 1,352 [ 1st Dept 19951, afid 89 f NY2d 833 [ 19961). Defendants contention, that plaintiff must have been lying when he testified that he was unable to recall the particulars of any of the significant worker s compensation claims -7- [* 9] that he had made over the prior 30 years, is based wholly on conjecture and without any evidence to show that plaintiff was lying rather than actually unable to recall the details of injury claims. Thus, as a matter of law, it is insufficient to raise a triable issue of fact as to plaintiffs credibility (see Rodriguez v Forest Ct Jay St. Assoc., 234 AD2d 68, 69-70 [lst Dept 19961 [summary iy judgment granted, as plaintiffs inability to recall certain basic matters is not the kind of genuine credibility questions raised when, for example, the injured worker s version of the accident is inconsistent with either his own previous account or that of another witness ] [internal quotation marks and citation omitted]). Accordingly, as defendants have failed to present evidence sufficient to raise a triable issue of fact relating to plaintiffs prima facie case, or a substantiated challenge to plaintiffs credibility, partial summary judgment as to liability is properly awarded to plaintiff on his Labor Law $240(1) claim (see Marrero v 2075 Holding Co. LLC, 106 AD3d 408 [ 1st Dept 20131 [summaryjudgment granted where defendant failed to present any evidence raising a triable issue of fact relating to the prima facie case or to plaintiffs credibility; plaintiffs criminal conviction, by itself, is insufficient to raise issue of credibility]; Weber v Baccarat, Inc., 70 AD3d 487 [lst Dept 20101 [summary judgment granted where defendants failed to present a conflicting theory with supporting evidence or to raise any bonafide credibility issues with respect to plaintiffs testimony]; Mannino v J A . Jones Const. Group, LLC, 16 AD3d 235 [ 1st Dept 20051 [summary judgment granted where there was no substantiated challenge to plaintiffs credibility]). TishmanNerizon s Motion for Partial Summary JudPment APainst Third-party Defendant Mazzeo for Contractual Indemnification A party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the -8- [* 10] surrounding facts and circumstances (Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [19871 [internal quotation marks and citation omitted]). Here, it is not disputed that the contract between Verizon and Mazzeo contains an indemnification provision, whereby Mazzeo agreed to indemnify Verizon and Tishman against losses arising out of any negligent or willful act or omission on the part of Mazzeo or its employees. Specifically, section 12.1 of the agreement provides: To the extent permitted by law, the Trade Contractor shall indemnify and hold harmless VERIZON, Construction Manager, Design Professional, and their officers, directors and employees from and against all claims, costs, losses and damages (including but not limited to all fees and charges of engineers, architects, attorneys and other professionals and all court or arbitration or other dispute resolution costs to the extent reasonable) caused by, arising out of or resulting from the performance or nonperformance of this Agreement, provided that any such claim, cost, loss or damage: (i) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the work itself), including the loss of use resulting therefrom; and (ii) is caused in whole or in part by any negligent or willful act or omission of the Trade Contractor, Subcontractor, Supplier, any person or organization directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. (Exhibit F to Affirmation of Richard T. Bogle, Esq. in Support of TishmadVerizon s Motion for Summary Judgment [motion sequence no. 0021 [ Bogel Aff. ]). TishmadVerizon argue that they are entitled to summary judgment on their contractual indemnification claim against Mazzeo, because the cause of plaintiffs injuries could only have been due to Mazzeo s negligence. In support of their motion, TishmanNerizon have proffered copies of the contract with Mazzeo along with plaintiffs deposition and affidavit, to establish that the accident arose solely out of Mazzeo s performance of the work, and Mazzeo s failure to secure the ladder or to provide plaintiff with any other safety device to prevent him from falling in the event the unsecured ladder twisted and fell. Specifically, this evidence establishes that the ladder, the -9- [* 11] instrumentality of plaintiffs accident, was provided by Mazzeo, was set up by a Mazzeo employee, and was neither secured nor held by anyone while plaintiff, who was employed by Mazzeo, performed his work. In opposition, Mazzeo does not rebut the evidence of its own negligence proffered by Tishmaflerizon; nor does Mazzeo proffer any evidence of active negligence on the part of Tishmaflerizion, which would preclude the granting of this motion. Rather, Mazzeo argues that Tishmaflerizon s motion for summary judgment must be denied because their attempt to obtain contractual indemnification from Mazzeo violates the anti-subrogation rule, which denies an insurer the right of subrogation against its own insured for a claim arising out of the very risk for which the insured was covered. Mazzeo notes that, under section 14.1 of the contract between Verizon and Mazzeo, Verizon agreed to set up an Owner s Controlled Insurance Program (OCIP), under which it expressly agreed to insure trade contractors, such as Mazzeo, for Statutory Workers Compensation, Employers Liability, Commercial General Liability, and Builders Risk (Exhibit F to Bogle Aff.). Mazzeo argues that, because it was included as an insured under the Commercial General Liability policy that Verizon provided to its trade contractors under the OCIP, the attempt by TishmadVerizon to obtain contractual indemnification and attorney s fees from Mazzeo, is nothing more than an effort by the actual party in interest, Le., the insurance company that provided this coverage, to recover from Mazzeo in violation of the anti-subrogation rule. TishmdVerizon argue that the anti-subrogation rule is inapplicable, because paragraph 2 of the OCIP expressly excludes trade contractors and subcontractors who are self-insured for workers compensation from the coverage provided by the OCIP. TishmadVerizon note that, as -10- [* 12] Mazzeo admittedly was self-insured for workers compensation, it is excluded form coverage under the OCIP. Paragraph two of the OCIP provides, in pertinent part, that Trade Contractors and subcontractors who are self-insured for workers compensation will be excluded from the coverage s provided by the OCIP (Exhibit F to Bogle Aff.). Mazzeo argues that this provision, as written, makes no grammatical sense, as it was drafted using the singular possessive form of the word << coverage, rather than the plural form of the word. At best, Mazzeo argues that this provision is ambiguous, and, therefore, should be construed against the drafter s preferred interpretation and given the plain meaning that a singular word would provide. Mazzeo argues that, if the word coverage is interpreted as a singular word, the logical conclusion would be that the exclusion to coverage applies only to one coverage, the workers compensation coverage, and not to all coverage provided under the OCIP. TishmanNerizon argue that Mazzeo is putting form over substance, and turning a blind eye to the context of the sentence and its obvious and intended meaning. Tishmaflerizon note that the context of the provision and sentence make clear that although written as a possessive, the word coverage s was intended as a plural. TishrnardVerizon note that the sentence simply makes no sense unless so construed. Whether an ambiguity exists in a written agreement is a question of law for a court to decide after reading the document as a whole to determine its purpose and intent (W W U.: Assoc. v. Giancontieri, 77 NY2d 157, 162 [ 19901. See also Helmsley-Spear, Znc. v New York Blood Center, Znc., 257 AD2d 64, 68 [ 1st Dept 19991 [ Interpretation of an unambiguous contract provision is a function of the court, and matters extrinsic to the agreement may not be considered when the intent -11- [* 13] of the parties can be gleaned from the face of the instrument. (quoting Teitelbaum Holdings Ltd. v Gold, 48 NY2d 5 1, 56)]). A contract should be interpreted so as to give full meaning and effect to the material provisions ( B e d Sav. Bank v Sommer, 8 NY3d 3 18,324 [2007] [internal quotation marks and citations omitted]), and should be read as a whole to ensure that undue emphasis is not placed upon particular words and phrases (Bailey v Fish & Neave, 8 NY3d 523,528 [2007]). An ambiguity will be found only where reasonable minds could differ as to what was intended by the parties (Wigginsv Kopko, 94 AD3d 1268, 1269 [3rd Dept 20121). Here, when the document describing the OCIP is read in its entirety, it is clear that the use by the drafter, of the singular possessive form of the word coverage, is simply a grammatical or typographical error. In fact, this same error was made consistently by the drafter four other times. It is clear, from the context of each of these uses, that the drafter could not have intended the singular possessive form of the word coverage, but the plural form of the word. Thus, the use of the singular possessive form, coverage s, first appears in paragraph one of the OCIP, which provides: The Construction Manager, Design Professional, Trade Contractors, subcontractors and Suppliers are insured to the extent described below for Statutory Workers Compensation, Employers Liability, Commercial General Liability, Builders Risk, and such other coverage s as VERIZON may in writing specifically add or delete for this project (id.).It next appears twice in paragraph two of the OCIP, which provides: Suppliers, vendors, fabricators, material dealers, drivers and others who merely transport, pick up, deliver, or carry materials, personnel, parts or equipment or any other items or persons to or from the Project site and others specifically agreed to by VERIZON and Construction Manager shall be excluded from the coverage s provided by the OCIP. Also Trade Contractors and subcontractors who are selfinsured for workers compensation will be excluded from the coverage s provided by the OCIP (id.). It last appears in paragraph five of the OCIP, which provides: -12- [* 14] Prior to commencement of the Project, VERIZON shall maintain the insurance coverage s specified in the OCIP at all times for VERIZON, Construction Manager, Design Professional, Trade Contractors, subcontractors and Suppliers of all tiers and such other persons or interests as VERIZON may designate in connection with the performance of the Project as insured parties and with limits not less than those specified below for each coverage (id.). As Mazzeo acknowledges, the use of the word coverage, in its singular possessive form, makes no grammatical sense in these contexts. However, the word makes complete grammatical sense when read as a plural. Therefore, +ds it is clear when read as a whole, the drafter of the OCIP document had not intended to invoke the singular possessive form of the word coverage, this court finds that provision excluding coverage under the OCIP is not ambiguous, and that trade contractors who are self-insured for workers compensation are excluded from all coverage provided under the OCIP, and not just from the OCIP s workers compensation coverage. Accordingly, as Mazzeo admittedly was self-insured for workers compensation, it is not an insured under the OCIP; therefore, the claim by TishmadVerizon for contractual indemnification does not run afoul of the anti-subrogation rule. Nevertheless, although TishmWerizon are entitled to seek contractual indemnification from Mazzeo, the motion by TishmanNerizon for summaryjudgment on their claim for contractual indemnification is denied as premature at this time. When liability attaches solely pursuant to Labor Law 0 240( l), indemnification may be sought from the party actually responsible for the supervision, direction, and control of the work giving rise to the injury (Cava Constr. Co., Inc. v GeaItec Remodeling Corp., 58 AD3d 660,661-662 [2nd Dept 20091, citing Comes v New YorkState EIec. & Gas Corp., 82 NY2d 876 [ 19931). However, a party seeking contractual indemnification -13- [* 15] must [first] prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor (id. at 662; see General Obligations Law 5 5-322.1. See also Jurnindur v Uniondale Union Free School Dist., 90 AD3d 6 12,616 [2d Dept 20 111 [ where a triable issue of fact exists regarding the indemnitee s negligence, a conditional order of summary judgment for contractual indemnification must be denied as premature (citations omitted)]). Although the record on these motions contains no evidence that an unsafe condition existed at the premises, or that TishmadVerizon supervised the work and/or were actively negligent, the common-law negligence and Labor Law 0 200 claims that were asserted by plaintiff against TishmadVerizon have yet to be dismissed, and thus remain to be determined. Therefore, it is yet to be established there is, in fact, no triable issue of fact as to whether TishmdVerizon were free from all negligence, and can be held liable solely by virtue of their vicarious liability. CONCLUSION Accordingly, it is hereby ORDERED that plaintiff Augustine Accardi s motion for partial summary judgment as to liability against the TishmadVersion defendants on his Labor Law 5 240( 1) claim (motion sequence number 001) is granted; and it is further ORDERED that the TishmadVerizon third-party plaintiffs motion for summary judgment against third-party defendant Michael Mazzeo Electrical Corp. on their claim for contractual indemnification (motion sequence number 002) is denied without prejudice as premature at this time; and it is further ORDERED that this action shall continue as to the remaining causes of action. -14- [* 16] The foregoing constitutes the decision and order of this Court. The clerk of the Court is directed to enter this judgment accordingly. ENTER: Dated: August 30,20 13 New York, New York Hon. Shlomo S. Hagler, J.S.C. FILED j SEP 0 4 2013 I i NEW YORK 4 ~uNpIcLERlcs0~ ._ -15-

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