Palma v Building Blocks Realty Co., LLC
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Palma v Building Blocks Realty Co., LLC 2013 NY Slip Op 32483(U) October 8, 2013 Supreme Court, Suffolk County Docket Number: 10-37309 Judge: Arthur G. Pitts 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 County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No. 10-37309 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK I.A.S. PART 43 - SUFFOLK COUNTY PRESENT: Hon. ARTHUR G. PITTS Justice of the Supreme Court MOTION DATE 6-20-13 ADJ. DATE 7-18-13 Mot. Seq. # 003 - MotD CO.Py ------------------------------------------------------------------X LUIS PALMA, Plaintiff, ROSENBERG & GLUCK, LLP Attorney for Plaintiff 1176 Portion Road Holtsville, New York 11742 - against BUILDING BLOCKS REALTY CO., LLC, G & M CONSTRUCTION CORP., and WRAP-N-PACK, INC., MCCARTHY & ASSOCIATES Attorney for Building Block and Wrap-N-Pack One Huntington Quadrangle, Suite 2C 18 Melville, New York 1174 7 Defendants. ----------------------------··-------------------------------------X G & M CONSTRUCTION CORP., Third-Party Plaintiff, JOHN L. JULIANO, P.C. Attorney for G & M Construction 39 Doyle Court E. Northport, New York 11731 ·· against CHASE CONSTRUCTION ENTERPRISES, LLC, Third-Party Defendant. ------------------------··---··-------------------------------------X BUILDING BLOCK~. REALTY COMPANY, LLC and WRAP-N-PACK, INC., Third-Party Plaintiffs, - a~~ainst CHASE CONSTRUCTION ENTERPRISES, LLC, Third-Party Defendant. ------------------------.. -----------------------------------------X ROE TAROFF T AITZ & PORTMAN LLP Attorney for Third-Party Defendant Chase Construction Enterprises One Corporate Drive, Suite I 02 Bohemia, New York 1171 6 [* 2] Palma v Building Block~ Realty Index No. 10-37309 Page No. 2 Upon the following papers numbered 1 to .J.Q_ read on this motion for leave to amend answer and summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1 - 15 ; Notice of Cross Motion and supporting papers _ ; Answering Affidavits and supporting papers 16 - 24; 25 - 27 ; Replying Affidavits and supporting papers 28 -30 ; Other_; c~md after healing eottn!lel i11 ~ttpport a11d opposed to the motion) it is, ORDERED that the motion by the third-party defendant for an order pursuant to CPLR 3025 (b) amending its answers ·:o the third-party complaint and second third-party complaint to include the affirmative defense that the claims of the third-party plaintiff and second third-party plaintiff are barred by Workers' Compensation Law§ 11 and for an order pursuant to CPLR 3212 granting summary judgment dismissing the third-party complaint and second third-party complaint is granted to the extent that the thirdparty defendant is permitted to amend its answer to include the affirmative defense, that the answer, in the form annexed to the moving papers, is hereby deemed served, and that the third-party defendant is granted summary judgment dismissing the second third-party complaint and the first, second, fourth, seventh, and eighth causes of action in the third-party complaint, and is otherwise denied. This is an action to recover damages for personal injuries allegedly sustained by the plaintiff on July 9, 2010, when he fell off of a scaffold while he was working for the third-party defendant ("Chase") at a construction site. At the time of the incident, Chase was a subcontractor of defendant and third-party plaintiff G & M ConstnI<::tion Corp. ("G & M"), the general contractor for the project. Defendants and thirdparty plaintiffs Building Blocks Realty Company, LLC and Wrap-n-Pack, Inc. ("Building Blocks" and "Wrap") are the owners of the premises. In the complaint and the bill of particulars, the plaintiff asserts causes of action against the defendants for common· law negligence and for violations of Labor Law§§ 200, 240 (1) and 241 (6). The plaintiff alleges that the defendants were negligent in, inter alia, failing to provide him with a safe place to work. A third-party complaint was filed by G & M against Chase and a second third-party complaint was filed by Building Blocb and Wrap against Chase. Both complaints are identical and assert eight causes of action. The first cause cif action seeks damages based on the fact that the plaintiff claimed that the injuries which he sustained constituted a "grave injury" as defined in Workers' Compensation Law§ 11. The second cause of action seeks common-law indemnification. The third cause of action seeks contribution. The fourth cause of action also seeks common-law indemnification. The fifth cause of action seeks contractual indemnification based on the "Indemnification, Hold-Harmless Insurance Agreement" entered into between the parties. The sixth ca1se of action seeks contractual indemnification based on the "Annual Subcontractor Agreement" entered into between the parties. The seventh cause of action seeks damages for Chase's alleged failure to procure insurance naming G & M, Building Blocks, and Wrap as additional insureds pursuant to the "Indemnification, Hold-Harmless Insurance Agreement," and the eighth cause of action seeks damages for Chas~'s alleged failure to procure insurance naming G & M, Building Blocks, and Wrap as additional insureds pursuant to the "Annual Subcontractor Agreement." Chase now move:s to amend its answers to the third-party complaint and second third-party complaint to include the affirmative defense that the claims of G & M, Building Blocks, and Wrap are barred by Workers' Compensation Law§ 11. In addition, Chase moves for summary judgment based on that ground. [* 3] Palma v Building Block~ Realty Index No. 10-37309 Page No. 3 Leave to amend a pleading should be freely granted in the absence of prejudice or surprise resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or devoid of merit (see Sabatino v425 Oser Ave., LLC, 87 AD3d 1127, 930 NYS2d 598 [2d Dept 2011]; JablonskivJakaitis, 85 AD3d 969, 926 NYS2d 137 [2d Dept 2011]). Here, Chase seeks to amend its answers to include the affirmative defense that the claims of G & M, Building Blocks, and Wrap are barred by Workers' Compensation Law § 11. Since this defense is not palpably insufficient or devoid of merit, and G & M, Building Blocks and Wrap have not established prejudice or surprise (se:? Sabatino v 425 Oser Ave., LLC, supra; Truebright Co., Ltd. v Lester, 84 AD3d 1065, 922 NYS2d 815 [:~d Dept 2011]), the branch of Chase's motion seeking leave to amend its answers to include this affirmafrre defense is granted. Turning to the branch of Chase's motion which is for summary judgment dismissing the complaint, it is axiomatic that summary judgment is a drastic remedy and should only be granted in the absence of any triable issues of fact (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 413 NYS2d 141 [1978];Andre v Pomeroy, 35 NY2cl 361, 362 NYS2d 131 [1974]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923, 925 [ 1986] ). Failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (WinegradvNew York Univ. Med. Ctr., 64 NY2d 851, 853, 487NYS2d 316, 318 [1985]). Further, the credibility of the parties is not an appropriate consideration for the Court (S.J. Cape/in Assocs., Inc. v Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478 [1974]), and all competent evidence must be viewed in a light most favorable to the party opposing summary judgment (Benincasa v Garrubbo, 141AD2d636, 637, 529 NYS2d 797, 799 [2d Dept 1988]). Once aprimafacie showing has been made, the burden shifts to the party opposing the summary judgment motion to produce evidence sufficient to establish tbe existence of a material issue of fact (see Alvarez v Prospect Hosp., supra). It is well settled that "Workers' Compensation Law§ 11 bars a third-party action for contribution or indemnification against an employer when its employee is injured in a work-related accident unless the employee has sustained a grave injury or the claim for contribution or indemnification is based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expret;sly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered" (Bovis v Crab Meadow Enters., Ltd., 67 AD3d 846, 847-848, 899 NYS2d 634, 636 [2d Dept 2011] [internal quotation marks omitted]). In addition, as a genera) rule "indemnit:r contracts are to be strictly construed to avoid reading into them duties which the :)arties did not intend to be assumed ... Therefore, such an agreement cannot be held to have a retroactive effect unless by its express words or necessary mplication it clearly appears to be the parties' intention to include past [* 4] Palma v Building Blocks Realty Index No. 10-37309 Page No. 4 obligations ... Thus, an indemnification agreement executed by a party after the accident occurred will not be applied retroactively in the absence of evidence that the agreement was made as of a date prior to the occurrence of the accident md that the parties intended the agreement to apply as of that date" (Mikulski v Adam R. West, Inc., 78 AD3d 910, 911-912, 912 NYS2d 233, 234 [2d Dept 201 O] [internal citations and quotation marks omitted)). plaintiff~; Here, it is undisputed that the plaintiff did not suffer a "grave injury" as defined in Workers' Compensation Law § 11. As a result, the first cause of action in both the third-party complaint and the second third-party complaint must be dismissed as they both seek damages based on the fact that the plaintiff suffered a "grave injury." The second and fourth causes of action in the third-party and second third-party complaints, which both seek damages based on common-law indemnification, must likewise be dismissed since Chase cannot be held liable for common-law indemnification unless the plaintiff sustained a "grave injury" (see Workers' Compensation Law§ 11; Picaso v 345 E. 73 Owners Corp., 101 AD3d 511, 956 NYS2d 27 [1st Dept 21)12]). With respect to the third, fifth, and sixth causes of action in both the third-party complaint and the second third-party complaint, which seek contribution and contractual indemnification, the court notes that while Chase entered i tlto an "Indemnification, Hold-Harmless Insurance Agreement" and an "Annual Subcontractor Agreement" with G & Min which it agreed to indemnify not only G & M but Building Blocks and Wrap as well, both agreements were not executed until September 2, 2010. Since those agreements were not executed until after the plaintiffs accident, G & M, Building Blocks, and Wrap cannot recover for contribution or contrcctual indemnification from Chase based on those agreements (see Workers' Compensation Law§ l 1; Mikulski v Adam R. West, Inc., supra). While G & M, Building Blocks, and Wrap assert in opposition that those agreements should be applied retroactively, it is undisputed that the agreements were executed after the plaintiffs accident, there is no language in either agreement indicating that Chase, G & M, Building Blocks, and Wrap intended its terms to be retroactively applied or that the agreements' effective c!ates were intended to be any date other than the date that they were executed (see Mikulski v Adam R. West, Inc., supra). As a result, G & M, Building Blocks, and Wrap have failed to establish the existence of a triable issue of fact with respect to those agreements. However, Chase entered into a contract with G & Mon May 7, 2010, prior to the plaintiffs accident, wherein it agreed to "hold Contractor [G & M] completely harmless from and ... defend and indemnify Contractor against all C)sts, damages, losses, and expenses, including reasonable attorney's fees, resulting from claims arising from causes mentioned in this paragraph." The causes mentioned in the paragraph included "damages to persons or property occasioned by Subcontractor [Chase] or Subcontractor's employees, materialmen, sub-subcontractors, agents and invitees." Thus, an issue of fact exists as to whether G & M can recover for contribution and contractual indemnification from Chase based on the May 7, 20 I 0 contract. Since Building Blocks and Wrap were not a party to that contract, and nowhere in that contract does it state t~at Chase would hold Building Blocks and Wrap harmless or indemnify them, the third, fifth, and sixth causes of action in the second third-party complaint are dismissed. Turning to the seventh and eighth causes of action in both the third-party and second third-party complaints, which seek damages for Chase's alleged failure to procure insurance naming G & M, Building Blocks, and Wrap as additional insureds, Chase established its prima facie entitlement to judgment [* 5] Palma v Building Blocks Realty Index No. 10-37309 Page No. 5 dismissing these cause:; of action. As a general rule, an agreement to purchase insurance coverage is clearly distinct from and treated differently from the agreement to indemnify (see Turner Constr. Co. v Pace Plumbing Corp., 298 AD2d 146, 748 NYS2d 356 [1st Dept 2002]; see also Kinney v G. W. Lisk Co., 76 NY2d 215, 557 NYS2cl 283 [1990]; McGillv Polytechnic Univ., 235 AD2d 400, 651NYS2d992 [2d Dept 1992]). Here, Chase was obligated to name G & M, Building Blocks, and Wrap as additional insureds pursuant to the "Indemnification, Hold-Harmless Insurance Agreement" and the "Annual Subcontractor Agreement.'' However, as noted above, these agreements were both signed after the plaintiffs accident. In any event, Chase estc:tblished that G & M, Building Blocks, and Wrap were additional insureds on Chase' s general liability insurance by submitting a copy of its insurance policy which includes a blanket additional insured endorsement. In opposition, G & M, Building Blocks, and Wrap failed to raise a triable issue of fact and merely argue that Chase' s insurer declined to provide coverage for this claim. To the extent that G & M , Building Blocks, and Wrap argue that they have been denied a defense by Chase' s insurer, the Court notes that the appropriate action on that claim would be a plenary action for declaratory judgment against the insurer (see Morti!Jaro v Public Serv. Mut. Ins. Co. 285 AD2d 586, 728 NYS2d 185 [2d Dept 200 l ]). Accordingly, Chase' s motion is granted to the extent that Chase is permitted to amend its answer to include the affirmative :iefense that the claims of G & M, Building Blocks, and Wrap are barred by Workers' Compensation Law § l 1, that the answer, in the form annexed to the moving papers, is hereby deemed served, and that Chase is granted summary judgment dismissing the second third-party complaint and the first, second, fourth, seventh, and eighth causes of action in the third-party complaint. The Court directs that the claims as to which summary judgment were granted are hereby severed and that the remaining claims shall continue (see CPLR 3212 [e] [ 1]). Dated: October 8, 2013 J.S.C. FINAL DISPOSITION X NON-FINAL DISPOSITION
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