Cardona v Pfizer, Inc.
Annotate this CaseDecided on January 28, 2013
Supreme Court, Kings County
Carlos Cardona, Plaintiff,
against
Pfizer, Inc. and GILBANE BUILDING COMPANY, Defendants.
38408 /2006
Plaintiffs Attorney -
Kelner & Kelner 140 Broadway, 37th Floor
New York, New York 10005
(212) 425-0700
Gail S. Kelner, Esq.
Defendants Attorney - Pfizer, Inc.
Goldweber Epstein, LLP.
845 Third Avenue
New York, New York 10022
(212) 355-4149
Jill L. Zibkow, Esq.
Defendants/Third-Party Plaintiffs - Gilbane Building Company
Cartafalsa, Slattery, Turpin & Lenoff
One Liberty Plaza
163 Broadway - 28yh floor
New York, New York 10006
(212) 225-7700
Michael J. Lenoff, Esq.
Third-Party Defendants/Second Third-Party Defendants - United Plumbing & Mechanical
O'Connor Redd, LLP.
200 Mamaroneck Avenue
White Plains, New York 10601
(914) 686-1700
Amy Fenno, Esq.
Steven R. Lau, Esq.
Wayne P. Saitta, J.
Third Party Defendant, UNITED PLUMBING & MECHANICAL, (hereinafter "UNITED"), moves this Court for an Order pursuant to CPLR §3212 dismissing the third party action and second third party action against it. PFIZER, INC., (hereinafter "PFIZER"), cross moves for Summary Judgment against the Plaintiff, and granting its cross claims against GILBANE BUILDING COMPANY, (hereinafter "GILBANE"), and dismissing GILBANE's cross claims against it, and granting summary judgment on all of its cross and third party claims against UNITED, and denying UNITED's motion for summary judgment against it; Plaintiff moves for partial summary judgment on its claim against PFIZER and GILBANE pursuant to Labor Law section 240(1); and GILBANE moves for summary judgment against Plaintiff dismissing his complaint and moves for summary judgment against UNITED for its claim for contractual indemnification.
Upon reading the Affirmation in Opposition to Plaintiff's Motion for Summary Judgment of Jill L. Zibkow, Esq., Attorney for Defendants/Third-Party Plaintiff, PFIZER, INC., dated February 21st, 2011 and all exhibits annexed thereto; PFIZER's Sur-Sur Reply Affirmation to UNITED PLUMBING, by Jill L. Zibkow, Esq., dated May 18th, 2011; the Notice of Motion by [*2]Amy L. Fenno, Esq., Attorney for Third-Party Defendants/Second Third-Party Defendants, UNITED PLUMBING & MECHANICAL, dated October 4th, 2011 together with the Affirmation in Support of Amy L. Fenno, Esq., dated October 4th, 2011 together with the Affidavit in Support of Christopher Jones dated September 16th, 2011 together with the Affidavit in Support of Damien George dated September 20th, 2011 together with the Expert Witness Affidavit dated September 15th, 2011 and all exhibits annexed thereto; the Notice of Motion of Steven R. Lau, Esq., Attorney for Third-Party Defendant/Second Third Party Defendants, UNITED PLUMBING & MECHANICAL, dated October 18th, 2011 together with the Affirmation in Good Faith of Steven R. Lau, Esq., dated October 18th, 2011 together with the Affirmation in Support of Steven R. Lau, Esq., dated October 18th, 2011 and all exhibits annexed thereto; the Affirmation in Opposition of Jill L. Zibkow, Esq., dated November 21st, 2011 and all exhibits annexed thereto; the Notice of Cross-Motion by Jill L. Zibkow, Esq., dated November 21th, 2011 together with the Affirmation in Support of PFIZER, INC's Cross-Motion for Summary Judgment and in Partial Opposition to Summary Judgment of UNITED PLUMBING, dated November 21st, 2011 and all exhibits annexed thereto; the Memorandum of Law by Jill L. Zibkow, Esq., dated November 21st, 2011; the Notice of Motion by Gail S. Kelner, Esq., Attorney for Plaintiff, CARLOS CARDONA, dated November 22nd, 2011 together with the Affirmation in Support of Gail S. Kelner, Esq., dated November 22nd, 2011 and all exhibits annexed thereto; the Notice of Cross-Motion by Michael J. Lenoff, Esq., Attorney for Defendants/Second Third-Party Plaintiff, GILBANE BUILDING COMPANY, dated November 22nd, 2011 together with the Affirmation in Partial Support to Motion and in Support of Cross-Motion by Michael J. Lenoff, Esq., dated November 22nd, 2011 and all exhibits annexed thereto; the Affirmation in Opposition to the Cross-Motion by Defendant/Third-Party Plaintiff, PFIZER, INC., FOR Summary Judgment by Michael J. Lenoff, Esq., dated January 13th, 2012 and all exhibits annexed thereto; the Affirmation in opposition of Michael J. Lenoff, Esq., dated January 13th, 2012; the Affirmation in Opposition of Gail S. Kelner, Esq., dated February 15th, 2012 and all exhibits annexed thereto; the Affirmation in opposition to Motion to Strike the Note of Issue by Gail S. Kelner, Esq., dated February 16th, 2012; the Affirmation in Opposition to PFIZER and GILBANE Cross-Motions by Amy L. Feeno, Esq., dated February 24th, 2012; the Affirmation in Reply in Further Support of UNITED s Motion for Summary Judgment of Amy L. Feeno, Esq., dated February 28th, 2012; the Affirmation in Partial Opposition to and Partial Support of GILBANE's Motion for Summary Judgment and in Reply of Jill L. Zibkow, Esq., dated March 16th, 2012; the Reply Affirmation of Gail S. Kelner, Esq., dated March 20th, 2012 and all exhibits annexed thereto; the Reply Affirmation to Third-Party Defendant's Opposition to Cross-Motion by Michael J. Lenoff, Esq., dated March 21st, 2012; PFIZER's Affirmation in Reply to UNITED PLUMBING and Plaintiff by Jill L. Zibkow, Esq., dated March 26th, 2012; the Affirmation in Reply to the Opposition of PFIZER to Gilbane's Motion for Summary Judgment by Michael J. Lenoff, Esq., dated March 26th, 2012; Sur-Reply Affirmation in Further Support of UNITED's Motion for Summary Judgment of Amy L. Fenno, Esq., dated April 27th, 2012; the Affirmation in Opposition to Improper Sur-Reply of Gail S. Kelner, Esq., dated May 14th, 2012; and after argument of counsel and due deliberation thereon, the motions are granted in part and denied in part for the reasons set forth below.
[*3]FACTS
Plaintiff seeks to recover for injuries he sustained when he fell from a 22 ft fiberglass ladder on March 9, 2006. Plaintiff was employed by Third Party Defendant UNITED as a pipe fitter. He was working on replacing the sprinkler pipe both at the top and the bottom of an acetone tank located at a work site owned by Defendant PFIZER, located at 630 Flushing Avenue, Brooklyn, NY.
UNITED was Plaintiff's employer and was the subcontractor hired to installed the sprinkler pipes.
Defendant GILBANE was the project manager for the installation of sprinkler pipes in the acetone tank area. PFIZER and GILBANE entered into a purchase order agreement dated January 4, 2005 to provide project management services for the installation of the sprinkler pipes.
UNITED was retained by PFIZER pursuant to a contract dated February 14, 2004 to provide plumbing work. The 2004 contract expired prior to Plaintiff's accident, and a Multiple Project Construction Agreement between PFIZER and UNITED dated December 13, 2005 was the contract in effect at the time of Plaintiff's fall.
At the time of his fall, Plaintiff was standing on a twenty two foot fiberglass extension ladder owned by his employer, UNITED. While he was working, the ladder slid out from underneath him, causing him to fall and sustain injuries.
Plaintiff's co-worker Christopher Jones had been holding the ladder at one point prior to the accident, but was not holding the ladder at the time of Plaintiff's fall because Plaintiff had sent him away to retrieve materials needed to continue the work.
Plaintiff states he was wearing his safety harness at the time of the accident but that he was not tied off with his lanyard because it was too short to connect to the top of the tank. Jones states Plaintiff was not wearing his safety harness at the time of his fall.
The acetone tank room, where Plaintiff fell, is exposed to the outdoor elements.
Plaintiff stated that the floor was wet at the time of his fall. Plaintiff's co-worker Christopher Jones stated that the floor was dry.
Plaintiff moves for partial summary judgment on his claim against PFIZER and GILBANE pursuant to Labor Law section 240(1).
PFIZER, cross moves for Summary Judgment to dismiss Plaintiff's complaint. It also seeks Summary Judgment granting its cross claims for contractual indemnification and defense, and failure to procure insurance, or alternatively common law contribution and indemnification against GILBANE, and dismissing GILBANE's cross claims against it.
PFIZER moves for summary judgment against UNITED on its third party claims for contractual indemnification and failure to procure insurance. It finally seeks an order denying UNITED's motion for summary judgment against it.
GILBANE also moves for summary judgment against Plaintiff dismissing his complaint and for summary judgment against UNITED on its claim for contractual indemnification.
Third Party Defendant, UNITED, moves for an Order pursuant to CPLR § 3212 [*4]dismissing the first third party and second third party actions against it.
ANALYSIS
Plaintiff's §240(1) claim
Plaintiff moves for summary judgment on its Labor Law 240(1) claims against PFIZER as owner and GILBANE as general contractor, arguing that the lack of adequate safety devices to protect Plaintiff while he was on the ladder was the proximate cause of Plaintiff's fall.
PFIZER and GILBANE move to dismiss Plaintiff's complaint including his claim pursuant to Labor Law 240(1).
Plaintiff states it is uncontested that he fell from the ladder, which was not tied off or being held in place and that the slipping of the unsecured ladder is prima facie proof of a 240(1) violation. Plaintiff also claims that he was not provided with a lanyard long enough to tie himself off.
GILBANE and PFIZER argue that Plaintiff was a recalcitrant worker and the sole proximate cause of his injuries, and therefore it is entitled to summary judgment dismissing Plaintiff's complaint.
PFIZER and GILBANE argue that Plaintiff was provided adequate safety devices, specifically a harness and lanyard, as well as training on how to perform the job safely. They argue Plaintiff chose not to use the devices and sent the co-worker who was holding the ladder away.
UNITED did not oppose Plaintiff's motion for summary judgment but moved to dismiss the first and second third party complaints against it. In connection with its motion, UNITED submits an affidavit of Chris Jones, Plaintiff's helper on the day of the accident. Jones states that CARDONA was not wearing his harness on the day of the accident. Jones further states that CARDONA wore his harness and "tied off" his lanyard on the day prior to the accident. He states that the equipment needed for Cardona to tie off and to tie off the ladder was available on site on the day of the accident. He further states that CARDONA did not tie off the top of the ladder on the day of the accident. Jones testifies that CARDONA told him to leave his position holding the ladder and to go retrieve materials.
UNITED also submits an affidavit by Bernard Lorenz, is an professional engineer retained for UNITED. Lorenz opines that if Plaintiff had been wearing his harness at the time he fell, there were numerous steel structures that Plaintiff could have tied off to while working at elevation on the extension ladder. He bases his opinion upon the testimony of the parties as well as a personal inspection of the acetone tank room where Plaintiff fell.
Damien George, principal of UNITED, testified that on the date of the accident, all necessary safety equipment was on site, including a safety harness, lanyards in 4 and 6 ft lengths, slings, rope, hard hats and goggles.
It is not contested that Plaintiff himself sent Jones to retrieve materials. Thus Defendants cannot be held to have violated section 240(1) by failing to have someone [*5]hold the ladder.
However, there is conflicting testimony as to whether Plaintiff was wearing a harness at the time of the accident and whether he was provided with a lanyard of sufficient length to enable him to tie off. Also there is a question as to whether there was equipment available on site to tie off the ladder. These questions of fact preclude granting summary judgment to either Plaintiff or Defendants as to the 240(1) claim.
Plaintiff's §241(6) claim
Both PFIZER and GILBANE move for summary judgment dismissing Plaintiff's entire complaint but do not address Plaintiff's claims pursuant to Labor Law section 241(6). Plaintiff alleged violations of Industrial Code sections 12NYCRR 23-1.21 including (b)(4)(iv) and (v).
Plaintiff claims violations of 12NYCRR 23-1.21 including (b)(4)(iv) and (v).
Subsection (iv) provides, [w]hen work is being performed from ladder rungs between six and ten feet above the ladder footing, a leaning ladder shall be held in place by a person stationed at the foot of such ladder unless the upper end of such ladder is secured against side slip by its position or by mechanical means.
When work is being performed from rungs higher than ten feet above the ladder footing, mechanical means for securing the upper end of such ladder against side slip are required and the lower end of such ladder shall be held in place by a person unless such lower end is tied to a secure anchorage or safety feet are used.
Subsection (v) provides, [t]he upper end of any ladder which is leaning against a slippery surface shall be mechanically secured against side slip while work is being performed from such ladder. NY Comp. Codes R. & Regs. tit. 12, § 23-1.21. Plaintiff states that he was working near the top of the acetone tank, which he states was 22-25 feet above the ground, on approximately the fourth rung from the top of the ladder.
Defendants have failed to show that the work was not being performed higher than ten feet off the ground or that the ladder was secured by mechanical means. They have therefore failed to meet their burden for summary judgment dismissing Plaintiff's 241(6) claim.
Plaintiff's Labor Law §200 / common law claim
PFIZER and GILBANE move to dismiss Plaintiff's section 200 and common law negligence claims.
PFIZER argues that it had no notice of any wet condition on the floor of the acetone tank and therefore cannot be found negligent pursuant to Labor Law 200 and common law negligence as alleged by the Plaintiff. It further argues that Plaintiff's negligence in sending Jones away and failing to use a harness and lanyard caused the accident.
Larry Roman (PFIZER) testified that when he conducted his walk throughs, he would not permit a ladder to be placed on a wet surface because it would be unsafe as [*6]the ladder could "slip out". He said that he did his walk through before Plaintiff fell on that day, but he did not recall having seen anyone from UNITED using a ladder or whether UNITED workers were wearing safety harnesses.
Damien George (UNITED) stated in his affidavit that "on the date of Mr. Cardona's accident, the floor was dry." "There was no water on the floor and Mr. Cardona never complained to me or anyone else to my knowledge that the floor was ever wet".
Chris Jones said the floor was completely dry on the date of the accident. Plaintiff testified that the floor was always wet and was wet on that day.
PFIZER's motion for summary judgment dismissing Plaintiff's claim pursuant to Labor Law section 200 and common law must be denied as there is conflicting testimony as to whether there was a wet condition on the floor in the acetone tank room on the day of Plaintiff's fall, and whether there was sufficient equipment available on site for Plaintiff to tie off his lanyard and the ladder, which he chose not to use.
PFIZER's and GILBANE's claims for common law indemnification and contribution against UNITED
UNITED moves for summary judgment to dismiss the cross claims for common law indemnity and contribution against it by PFIZER and GILBANE because it was Plaintiff's employer and Plaintiff did not suffer a grave injury as defined in Workers Compensation Law section 11.
Neither PFIZER nor GILBANE oppose this part of UNITED's motion and therefore UNITED, as Plaintiff's employer, is entitled to summary judgment dismissing the claim for common law indemnification and contribution.
PFIZER's claims for contractual indemnification against UNITED
PFIZER moves for summary judgment on its claim for contractual indemnification from UNITED. UNITED moves to dismiss this claim.
The indemnification provision in the agreement between PFIZER and UNITED provides that:
Contractor shall defend, indemnify and hold harmless Owner for
(a) failure of Contractor or its Subcontractor or its or their employees to comply with any law, ordinance, regulation, rule or order of any governmental body, including but not limited to failure of Contractor to pay taxes, duties, or fees, or to comply with employee safety regulations or with the Jobsite Safety rules;(e) injury to or death of any person or damage to property resulting from and/or caused by the Contractor's performance or non-performances of its obligations under this Agreement and any Project Supplement, amendment, work orders and related documents;[*7](g) negligence, recklessness, willful misconduct, fraud or bad faith of Contractor or its Subcontractors or its or their employees [sic].
Pursuant to the Multiple Project Construction Agreement, UNITED must defend and indemnify PFIZER for any injury resulting from and/or caused by the Contractor's performance or non performances of its obligations. While the agreement also specifies that UNITED must indemnify PFIZER for any violation it commits or any negligence on its part, subsection (e) is clear that it must indemnify for any injury arising from its work, even if UNITED was not negligent.
"[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 surrounding facts and circumstances' " (Drzewinski v. Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777, 521 N.Y.S.2d 216, 515 N.E.2d 902, quoting Margolin v. New York Life Ins. Co., 32 NY2d 149, 153, 344 N.Y.S.2d 336, 297 N.E.2d 80).
However a party cannot contract to be indemnified for its own negligence. "[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (Cava Constr. Co., Inc. v. Gealtec Remodeling Corp., 58 AD3d 660, 662, 871 N.Y.S.2d 654; see Bellefleur v. Newark Beth Israel Med. Ctr., 66 AD3d 807, 808, 888 N.Y.S.2d 81). Where a triable issue of fact exists regarding the indemnitee's negligence, summary judgment on a claim for contractual indemnification must be denied as premature (see Bellefleur v. Newark Beth Israel Med. Ctr., 66 AD3d at 808, 888 N.Y.S.2d 81; State of New York v. Travelers Prop. Cas. Ins. Co., 280 AD2d 756, 757—758, 720 N.Y.S.2d 589). Baillargeon v. Kings County Waterproofing Corp., 91 AD3d 686, 688, 936 N.Y.S.2d 298, 300 (2nd Dept 2012)
PFIZER's project engineer, Larry Roman, oversaw the sprinkler installation work in the acetone tank room. He conducted "walk throughs", issued "safe work permits" at the start of the work day and he or any PFIZER employee had the authority to shut the job down if he observed any unsafe work practices.
There remain questions of fact as to whether PFIZER was negligent in allowing Plaintiff to work on the day of the accident if the floor was wet, if Plaintiff was not wearing a harness, or if Plaintiff was working higher than ten feet off of the floor with the ladder not mechanically secured.
Thus, PFIZER is entitled to defense and contractual indemnification from UNITED if it is found statutorily liable as to indemnification on Plaintiff's Labor Law 240(1) and 241(6) claims, but it is premature to grant summary judgment on indemnification as to Plaintiff's Labor Law 200 and common law claims as there remain questions of fact as to whether PFIZER was negligent in supervising Plaintiff's work.
PFIZER's claim for failure to procure insurance against UNITED
PFIZER moves for summary judgment on its claim against UNITED for breach of [*8]contract for failure to procure insurance. UNITED moves for summary judgment to dismiss PFIZER's claim for breach of contract for failure to procure insurance.
UNITED argues that it purchased insurance from Harleysville Worcester Insurance Company and named PFIZER as an additional insured. UNITED produced a copy of the policy in its motion papers which lists "Owners, Lessees or Contractors" as additional insureds.
PFIZER argues that UNITED's insurance carrier, Harleysville, has refused to provide either defense or indemnification and therefore the policy procured by UNITED was insufficient. The correspondence PFIZER submits indicates that Harleysville disclaimed as to PFIZER's claim on the grounds PFIZER did not provide timely notice of the accident.
The letter from Harleysville disclaiming for late notice, as well as the copy of the policy, demonstrate that UNITED did procure insurance for PFIZER. The fact that Harleysville disclaimed for alleged late notice by PFIZER does not constitute a breach by UNITED. Therefore, PFIZER's claim for breach of contract for failure to procure insurance must be denied.
GILBANE's claim for contractual indemnification from UNITED
UNITED moves to dismiss GILBANE's claim for contractual indemnification and GILBANE seeks summary judgment on the same claim.
UNITED argues that they never agreed to indemnify GILBANE.
There is no contract between UNITED and GILBANE. GILBANE's claim for contractual indemnification is based on the "Multiple Project Construction Agreement" between UNITED and PFIZER dated 30th December, 2005.
The indemnification clause in that agreement provides that UNITED was to indemnify the Owner and its agents. GILBANE argues that it is an agent of the owner, PFIZER, and thus was a party intended to be indemnified by UNITED.
However, GILBANE and PFIZER signed a Construction Management Agreement on July 9, 2003 for construction management services located at PFIZER which specified that GILBANE was an independent contractor, not an agent of PFIZER.
Paragraph 21 of the agreement between GILBANE and PFIZER reads,
"Construction Manager shall, at all times, remain an independent contractor and shall not be considered a representative or agent of Pfizer, except to the extent that Construction Manager may act as Pfizer's agent in the purchase of materials, equipment and supplies required for the Work."
Since the GILBANE and PFIZER agreement specifically provides that GILBANE was an independent contractor and was not to be considered a representative or agent of PFIZER, GILBANE is not an agent under the terms of the indemnification clause of the agreement between UNITED and PFIZER. As GILBANE produced no other contract in which UNITED agreed to indemnify GILBANE, GILBANE's claim for contractual indemnification from UNITED must be dismissed.
[*9]PFIZER's claim against GILBANE for failure to obtain insurance
PFIZER seeks summary judgment against GILBANE for breach of contract for failure to procure insurance. It argues that all contracts between PFIZER and GILBANE have required GILBANE to provide it insurance.
GILBANE argues that PFIZER has not provided the terms of any written contract between the parties in effect at the time of Plaintiff's fall. GILBANE does not state whether they procured insurance.
Larry Roman, the Senior Project Engineer at the Acetone Tank for PFIZER, states in his affidavit that at the time of Plaintiff's accident, GILBANE was working pursuant to "a written contract and a Purchase Order". He specified that the purchase order was dated January 4, 2005. He does not specify to which contract he refers. He states that the Purchase Order attaches "standard terms and conditions" which is a separate page to the purchase order. PFIZER submitted a copy of a purchase order, no 023037/0009, dated January 14, 2005 for project support services for Balmore Alvarez, Troy Bartley, Sal Scalise and Amreesh Mathur for a total price of $279,200.00. The purchase order does not specify the project it covers.
PFIZER entered into a Professional Services Agreement with GILBANE dated January 14th, 2005 which by its terms expired on January 13, 2006. Both the Professional Service Agreement and the standard terms and conditions submitted as part of the purchase Order require GILBANE to provide insurance in favor of PFIZER.
The purchase order also makes reference to the Professional Service Agreement as supplemental terms of the purchase order. The Professional Services Agreement references "PO 02037/0009" and lists in Schedule A the personnel assigned to perform work under the agreement as Alvarez, Bartley, Scalise and Mathur.
From the date of these two documents and the fact that they reference each other and the same GILBANE employees, it is clear that the Purchase Order 02037/0009 of January 14, 2005 and the Professional Services Agreement of the same date are for the same work. However, it is not clear what work the Purchase Order and Professional Services Agreement cover. The fact that they were dated over a year before Plaintiff's accident and the fact that the Professional Services Agreement terminated on January 13, 2006 raise a question of fact as to whether they covered the job on which Plaintiff was working when he was injured.
The Court is unable to determine from the papers submitted what, if any agreement between PFIZER and GILBANE would have covered the work the Plaintiff was engaged in at the time of his accident. For this reason PFIZER's motion for summary judgment on its claim against GILBANE for failure to procure insurance must be denied.
PFIZER's claim against GILBANE for contractual and common law indemnification.
PFIZER seeks summary judgment on its claim against GILBANE for contractual indemnification. PFIZER argues that the terms of the purchase order of January 14, [*10]2005 and the Professional Services Agreement require GILBANE to defend and indemnify PFIZER. Both the Purchase Order and the Professional Services Agreement require GILBANE to indemnify and defend PFIZER for any liability caused by GILBANE.
However because, as discussed above, there remain questions whether the Purchase Order and Professional Services Agreement covered the work Plaintiff was doing when he was injured, PFIZER's motion for summary judgment on its claim for contractual indemnification from GILBANE must be denied.
PFIZER alternatively seeks summary judgment on its claim for common law indemnification against GILBANE. based on the fact that PFIZER hired it to oversee the project.
At this time, since there has been no finding that GILBANE was negligent in supervising UNITED, summary judgment against GILBANE for common law negligence is premature.
Lastly, PFIZER states in its notice of motion that it moves to dismiss GILBANE's cross claims but it fails to discuss the dismissal of GILBANE's cross claims for contractual and common law indemnification and therefore that part of PFIZER's motion is denied.
WHEREFORE, Plaintiff's motion for summary judgment on its Labor Law 240(1) claim is denied, PFIZER's cross motion for summary judgment dismissing Plaintiff's complaint is denied, GILBANE's motion dismissing the Plaintiff's complaint is denied, UNITED's motion for summary judgment dismissing PFIZER's claim for contractual indemnification is denied as to Labor Law sections 240(1) and 241(6), UNITED's motion for summary judgment to dismiss the claims against it by PFIZER and GILBANE for common law indemnity and contribution is granted, UNITED's motion for summary dismissing the claims by PFIZER for breach of contract for failure to procure insurance is granted, UNITED's motion for summary dismissing the claims by GILBANE for contractual indemnification is granted, PFIZER's cross motion for summary judgment against UNITED for contractual indemnification is granted as to Labor Law 240(1) and 241(6)and denied as to section 200, PFIZER's cross motion for summary judgment against UNITED for breach of contract for failure to procure insurance is denied, GILBANE's cross motion for summary judgment on its cross claim of contractual indemnification against UNITED is denied, PFIZER's cross motion granting summary judgment on its cross claims against GILBANE for failure to procure insurance is denied, PFIZER's cross motion granting summary judgment on its cross claims against GILBANE for contractual indemnification is denied, PFIZER's cross motion granting summary judgment on its cross claims against GILBANE for common law indemnification and contribution are denied, and it is hereby
ORDERED that PFIZER's cause of action for common law indemnity and contribution against UNITED are dismissed, GILBANE's cause of action for common law indemnity and contribution against UNITED are dismissed, PFIZER's cause of action for breach of contract for failure to procure insurance against UNITED is dismissed, GILBANE's cause of action for contractual indemnification against UNITED is dismissed, and PFIZER is [*11]granted summary judgment declaring that PFIZER is entitled to defense and contractual indemnification from UNITED as to Plaintiff's causes of action pursuant to Labor Law sections 240(1) and 241(6).
This shall constitute the decision and order of the Court.
ENTER,
_________________________________
J S C
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