Draper v Danica Group LLC
Annotate this CaseDecided on January 27, 2014
Supreme Court, Queens County
Antonio Draper, Plaintiff,
against
Danica Group LLC, BBD DEVELOPERS LLC, 17TY STREET DEVELOPMENT NY CORP., METRO CONSTRUCTION ENTERPRISES, INC. AND PAV-LAK INDUSTRIES, INC., Defendants.
23502/2008
Robert J. McDonald, J.
The following papers numbered 1 to 30read on this motion by Copper Plumbing and Heating LLC (Copper), to reargue the branch of the court's June 17, 2013 Order which denied Copper's motion for summary dismissal of that portion of the Third-Party Complaint sounding in contractual indemnification; Order to Show Cause by Danica to reargue the June 17, 2013 Order which denied Danica's motion for summary judgment on procedural grounds as provided below; and cross motion by BBD Developers, LLC, 17th Street Development NY Corp., Metro Construction Enterprises, Inc., and Pav-Lak Industries, Inc. (collectively referred to herein as the "owner defendants"), to preclude Copper from refuting the owner defendants' motion and at trial with the January 18, 2013 affidavit and oral testimony of Thomas Andreadakis on the ground that such testimony was not timely exchanged and because Copper failed to produce this witness for examination before trial, pursuant to CPLR 3126.
Papers
Numbered
Notice of Motion - Affidavits - Exhibits1 - 8
Notices of Cross Motions - Affidavits - Exhibits9 - 16
Answering Affidavits - Exhibits17 - 24
Reply Affidavits25 - 30
Upon the foregoing papers it is ordered that the motions are determined as follows:
Plaintiff in this negligence/labor law action seeks damages for personal injuries sustained on December 6, 2007, when he slipped on ice on a staircase while performing construction work at 246 West 17th Street, in New York City. BBD Developers, LLC (BBD) was the original purchaser of the property at 246 West 17th Street. BBD sold the property to 17th Street Development prior to any of the renovation work at issue. Pav-Lak was the general manager/contractor responsible for the entire building. Danica was retained as a subcontractor by Pav-Lak, to perform mechanical and plumbing work at the premises. In a prior decision, the court determined three (3) motions and two (2) cross motions based upon the submissions. Here, as noted above, the parties move and cross move to reargue the court's prior order.
Motion by Copper
The motion to reargue the court's decision denying Copper's motion for summary dismissal of the Third-Party Complaint which sought contractual indemnification from Copper, [*2]is granted. Upon re-argument, the motion by Copper for summary dismissal of that portion of the third-party complaint which seeks contractual indemnification from Copper, is denied.
The third-party complaint seeking contractual indemnification rest solely on the contents of the Master Subcontract Agreement between Copper and Danica. Pursuant to an April 1, 2006 Master Subcontract Agreement, Copper agreed to complete the work on Danica's existing contracts, including the subject Subcontractor Agreement between Pav-Lak and Danica. In addition, Copper conceded in its response to a Notice to Admit that Copper entered into a nearly identical written Insurance Requirements/Indemnity Agreement with Danica dated October 3, 2007. Pursuant to the October 3, 2007, Insurance Requirements/Indemnity Agreement, Copper assumed duties to defend, indemnify and procure commercial general liability insurance coverage for the Owners and their agents.
It is well settled that "[t]he right to contractual indemnification depends upon the specific language of the contract" (see Kader v City of NY, Hous. Preserv. & Dev., 16 AD3d 461, 463 [2005]). The intent to indemnify must be clearly implied from the language and purposes of the entire agreement and the surrounding circumstances (see Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987]; Margolin v New York Life Ins. Co., 32 NY2d 149, 153 [1973]).
Here, under the specific terms of the Master Subcontract Agreement, Copper assumed duties to defend, indemnify and procure commercial general liability insurance coverage for the Owners and their agents. Accordingly, Copper's motion to reargue is granted, however, its motion for summary judgment in its favor dismissing the branch of the third-party complaint which seeks contractual indemnification, is denied.
Order to Show Cause by Danica
The Order to Show Cause by Danica to reargue the court's prior order which denied its motion for summary dismissal of plaintiff's Labor Law §240 (1) claim, is granted. In the court's prior order, it denied Danica's motion as untimely, as the complete motion by Danica was not served until March 8, 2013. On this basis, the court did not consider the merits of Danica's motion.
Notwithstanding this fact, to the extent that the court failed to make it clear in its prior order, plaintiff's cause of action under section 240(1), is dismissed with regards to all defendants as the subject accident was not caused by an "elevation-related" hazard (see Ross v Curtis-Palmer Hydro-Electric, 81 NY2d 494 [1993]; see also Peay v New York City School Construction Authority, 35 AD3d 566 [2006]; Natale v City of New York, 33 AD3d 772 [2006]).
Cross Motions by the Owner Defendants
The cross motions by the owner defendants to preclude Copper and Danica from using the January 18, 2013 affidavit of Thomas Andreadakis to refute the owner defendants' summary judgment motion, and to preclude introduction of the same at trial, on the ground that such testimony was not timely exchanged and because they failed to produce this witness for [*3]examination before trial, is granted.
As the Court of Appeals has noted, the failure of attorneys to comply with court-ordered deadlines has increasingly become a problem in our court system (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010]; Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521 [2005]; Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). Compliance requires not only a timely response, but a good-faith effort to provide a meaningful response (see Kihl v Pfeffer, 94 NY2d at 123; see also Garcia v City of New York, 5 AD3d 725, 726 [2004]; Gomez v Gateway Demolition Corp., 293 AD2d 649, 650 [2002]). The failure to comply with deadlines and provide good-faith responses to discovery demands "impairs the efficient functioning of the courts and the adjudication of claims" (see Gibbs v St. Barnabas Hosp., 16 NY3d at 81; Kihl v Pfeffer, 94 NY2d at 123). The Court of Appeals has also pointed out that "[c]hronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules" (Gibbs v St. Barnabas Hosp., 16 NY3d at 81), and has declared that "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Kihl v Pfeffer, 94 NY2d at 123; see generally Cadichon v Facelle, 18 NY3d 230 [2011]).
Although perhaps an undesirable outcome, parties, where necessary, will be held responsible for the failure of their lawyers to meet court-ordered deadlines and provide meaningful responses to discovery demands and preliminary conference orders (see Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d at 521; Kihl v Pfeffer, 94 NY2d at 123; Garcia v City of New York, 5 AD3d at 726). The failure to abide by these basic rules governing compliance with disclosure orders cannot and will not be tolerated in our courts (see Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d at 521; Kihl v Pfeffer, 94 NY2d at 123).
In this case, the attorneys for Danica and Copper were served with a CPLR Article 31 notice to produce Thomas Andreadakis for examination before trial. They failed to produce that witness. In fact, Copper set forth its refusal to produce in a signed writing wherein it asserted that Thomas Andreadakis did not have any knowledge material to the matters in controversy. Accordingly, the court will not consider the January 18, 2013 affidavit of Thomas Andreadakis, and such testimony cannot be had at trial.
Conclusion
Copper's motion to reargue is granted. However, upon reargument, Copper's motion for summary judgment in its favor dismissing the branch of the third-party complaint which seeks contractual indemnification, is denied.
The Order to Show Cause by Danica to reargue the court's prior order which denied its motion for summary dismissal of plaintiff's Labor Law §240 (1) claim, is granted. Upon reargument, the motion by Danica to dismiss plaintiff's Labor Law §240 (1) claim, insofar as [*4]asserted against Danica is also granted; and the branch of the motion by Danica which was for summary judgment dismissing the indemnification claims by the owner defendants is denied.
The cross motion by the owner defendants to preclude Copper from using the January 18, 2013 affidavit of Thomas Andreadakis to refute defendants' summary judgment motion and to preclude introduction of the same at trial, is granted.
Dated: January 27, 2014
Long Island City, NY
______________________________
ROBERT J. MCDONALD
J.S.C.
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