Juarez v Roza 14W LLC

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Juarez v Roza 14W LLC 2016 NY Slip Op 30398(U) March 9, 2016 Supreme Court, New York County Docket Number: 151590/14 Judge: Cynthia S. Kern 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] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ----------------------------------------------------------------------x EDUARDO JUAREZ a/k/a EDUARDO LOPEZ, Plaintiff, l~ Index No. 151590/14 I -against- DECISION/ORDER ROZA 14W LLC and SKYLINE RESTORATION INC., Defendants. ----------------------------------------------------------------------x ROZA 14W LLC and SKYLINE RESTORATION INC., Third-Party Plaintiffs, -againstALL DAY RESTORATION, INC., Third-Party Defendant. ----------------------------------------------------------------------x i HON. CYNTHIA KERN, J.S.C. Recitation, as required by CPLR 2219(a), of the papers considered in the''review of this motion for: ] ,, ,j Papers Numbered 'l t; Notice of Motion and Affidavits Annexed ................................... . Notice of Cross-Motion and Affidavits Annexed ................. . Answering Affidavits ......................................................... . Replying Affidavits ..................................................................... . Exhibits ..................................................................................... . :t ·\~ r " 12 3 456 789 10 J : Plaintiff Eduardo Juarez a/k/a Eduardo Lopez commenced the instant action against ~· 'I defendants/third-party plaintiffs Roza 14W LLC ("Roza") and Skyline Restoration, Inc. I 11 ("Skyline") seeking to recover for injuries he allegedly sustained while wbrking at a construction ' ·i site. Plaintiff now moves for an Order pursuant to CPLR § 3212 grantin~ him partial summary ' judgment on the issue of liability against defendants/third-party plaintiffs ,,'on his claim pursuant 2 of 16 [* 2] to New York Labor Law§ 240(1). Defendants/third-party plaintiffs Roza and Skyline cross' 'i move for an Order pursuant to CPLR § 3212 for summary judgment dismissing plaintiffs complaint and any and all cross-claims and counterclaims asserted against them. I :~ Defendants/third-party plaintiffs Roza and Skyline also separately move for an Order pursuant to CPLR § 3212 granting them summary judgment on their third-party complaint against thirdparty defendant All Day Restoration, Inc. ("All Day") and directing that All Day defend and I indemnify them. The motions are consolidated for disposition and are resolved as set forth ' below. The relevant facts are as follows. In the fall of 2013, plaintiff, who was employed by third-party defendant All Day, was performing construction work at a coAstruction project located at 14 Wall Street, New York, New York (the "Project"). The Project entailed various renovations to a thirty-three story building which was owned by defendant Roza. Defendant I -Skyline was hired by Roza as the general contractor to perform work on the Project, which ' included the caulking of all exterior windows, the removal of limestone p~nels from two comers of the roof, waterproofing of the columns and re-setting of the limestone panels. Skyline hired third-party defendant All Day to perform the fa<;ade work on the Project. When plaintiff started work on the Project, he performed caulking work on the exterior windows from a suspended scaffold. Thereafter, he was assigned the task of moving limestone ,, panels, which were each approximately ten inches deep, four feet wide, four feet long and ; weighed approximately 150 pounds, from one location of the roof to another. Plaintiff testified that in order to move the limestone panels, the workers would use a pair of pipe scaffolds. 1r Specifically, the pipe scaffolds would be brought close to the panels and then the panel would be 2 3 of 16 [* 3] tied via chain to an I-beam and pulley located in the center of the scaffold. Once tied, the panel would be hoisted and then the pipe scaffold was pushed to the location where the panel was to be relocated. On or about December 7, 2013, plaintiff and his co-workers were' directed by their supervisor, Jorge, to assemble the pipe scaffolding on the roof and to put 1 I-beam and pulley the on the pipe scaffold in preparation to move the limestone panels. Prior fo putting the limestone panels on the roof, however, insulation had to be placed on the roof on top of which each panel would rest. At the time of his accident, plaintiff was on his knees facing' the pipe scaffold placing insulation down onto the previously placed panel so that the nexflimestone panel could be lowered. The limestone panel at issue was elevated directly above th6 insulation and the pipe scaffold was already in place. Plaintiffs co-workers had not yet begun to lower the limestone panel when the pipe scaffold tipped over and struck plaintiff in his head (the "accident"). Plaintiff testified that although the scaffold at issue was made up of two "cross-hatched" pipes the morning of the accident, at some point prior to the accident, the workers were instructed to remove one of the "cross-hatched" pipes leaving the scaffold at issue with just one. Further, Kevin Cahill, Skyline's Project Manager, testified, after being shown pictures of the scaffold at issue, that the scaffold was not safe for use, that it did not appear to be set up properly and that it did not contain a weight on it in order to balance it to prevent it from toppling over. Thereafter, plaintiff commenced the instant action against Roza and Skyline asserting claims for common law negligence and violations of Labor Law §§200, 240(1) and 241(6). Subsequently, Roza and Skyline commenced a third-party action against All Day asserting claims for contribution, indemnification and breach of contract. 3 4 of 16 [* 4] The court first turns to plaintiff's motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240(1 ). Pursuant to Labor Law§ 240(1 ), I All contractors and owners and their agents ... who contract for but do not control the work, 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 §240( 1) was enacted to protect workers from hazards related to the effects of gravity ' where protective devices are called for either because of a difference between the elevation level '1 of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of materials or load being hoisted or secured. See Rocovich v. Consolidated Edison, 78 N.Y.2d 509, 514 (1991). "[N]ot every object that falls on a worker[] gives rise to the extraordinary protections of Labor Law§ 240(1)." Narducci v. Manhasset Bay Associates, 96 N.Y.2d 259, 267 (2001) Indeed, "[i]n order to prevail on summary judgment in a section 240(1) 'falling object' case, the injured worker must demonstrate the existence of a hazard contemplated under that statute 'and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein."' Fabriziy 1095 Ave. of Americas. LLC, 22 N.Y.3d 658 (2014) (citing Narducci, 96 N.Y.2d at 267). "With respect to falling objects, Labor Law § 240(1) applies where the falling of an object.is related to 'a 1 significant risk inherent in ... the relative elevation ... at which materials or loads must be positioned or secured."' Narducci, 96 N. Y.2d at 268. "Thus, for section 240(1) to apply, a plantiff must show more than simply that an object fell causing injury to ·i aworker. " ' A plaintiff must show that the object fell. . .because of the absence or inadequacy of~ safety device of the 4 5 of 16 [* 5] ;f kind enumerated in the statute." Id. Owners and contractors are subject to absolute liability 'f· under Labor Law§ 240(1), regardless of the injured worker's contributoiy negligence. See ' Bland v. Manocherian, 66 N.Y.2d 452 (1985). Only ifthe plaintiff was'jthe sole proximate :1 ,, cause of his injuries would liability under this section not attach. See Robinson v. East Medical ' Center, LP, 6 N.Y.3d 550 (2006). " ;1 In the instant action, plaintiff has established his prima facie right to partial summary I . judgment on the issue of liability pursuant to Labor Law§ 240(1) as he Has shown that his _., .,' accident occurred due to defendants/third-party plaintiffs' failure to prov~de an adequate safety l device to prevent the pipe scaffold from falling on plaintiff and injuring ~im, in violation of J ,, Labor Law §240(1). As an initial matter, plaintiffs accident clearly occurred due to a gravity'~ related hazard as the accident flowed directly from the application of the:'.force of gravity onto the ' pipe scaffold itself when it toppled over from the weight of the hoisted litnestone panel onto plaintiff. Further, the collapsing or falling over of a scaffold or hoisting 11device, which are two 1 of the safety devices enumerated in the statute, injuring a worker, is the kind of foreseeable J 'i "elevation risk" within the contemplation of Labor Law§ 240(1 ). See T~ompson v. St. Charles Condominiums, 303 A.D.2d 152, 154 (1st Dept 2003)(finding that 240(1 )l"appl[ies] to the J collapse of a scaffold, the purpose of which is to hold construction supplies and workers at a ' 1l raised level," because "liability is based upon a defect in a protective device specifically listed in ·'·• the statute"); see also Jiron v. China Buddhist Assn., 266 A.D.2d 347, 349 (2d Dept 'i 'l 1999)("finding that 240( 1) applies because "proper construction and plac~ment of the hoist, ' which is one of the safety devices enumerated in the statute, could have p~evented it"); see also ii •I Smith v. Jesus People, 113 A.D.2d 980, 983 (3d Dept 1985)(holding thatf'Labor Law§ 240 (1) "I 5 6 of 16 [* 6] .1 be construed to cover the situation where a defective scaffold falls on a worker and injures him"); see also McCallister v. 200 Park, L.P., 92 A.D.3d 927, 929 (2d ~ept 2012)("[g]iven that I two of the scaffold's wheels failed in the course of the [work], the scaffo:ld with which the i plaintiff was furnished was plainly inadequate for the work being perfonhed ... [and] that the :1 accident was the direct consequence of the inadequate scaffold.") The fact that the pipe I " scaffold, which was hoisting a heavy limestone panel, did topple over inj'uring plaintiff is proof i I that there was a defect in a protective device specifically listed in the stat'ute and thus, a failure to ,• provide an adequate safety device to protect plaintiff pursuant to Labor rlaw §. 240( 1). I ,, Indeed, in Jiron, a case similar to the instant action, the plaintiff ias injured when the .. , ' ' motor of a hoist which was being used to transport building materials fro!n ground level to a ,, higher level of the building structure broke apart from the platform and fbll, striking plaintiff in ,,t the head. In holding that the plaintiff established his right to summary j*dgment pursuant to Labor Law § 240(1 ), the court explained as follows: ,[ ·I If the accident occurred in the manner alleged by the plainti,ff, proper construction and placement of the hoist, which is one of ~he safety devices enumerated in the statute, could have prevente4 it. The statutory requirement that workers be provided with proper protection extends not only to the hazards of building materials falling from the hoist as they are being conveyed to the tpp of the structure, but also to the hazard of a defective hoist, or portf on of the hoist, falling from an elevated level to the ground. ·I Jiron, 266 A.D.2d at 349. Here, the toppling over of the pipe scaffold, Jhich, like a hoist, is ,,I one of the safety devices enumerated in the statute, was the sole cause of 'plaintiffs injury. Thus, plaintiff has established its prima facie right to summary judgment ,on his claim pursuant to Labor Law§ 240(1) against defendants as they were obligated to provi~e plaintiff with an I adequate scaffold or some other adequate safety device to prevent the 6 7 of 16 sca~fold from falling and [* 7] they did not. In response, defendants/third-party plaintiffs have failed to raise ~n issue of fact sufficient [As an initial matter, to to defeat plaintiffs motion for summary judgment on his 240(1) claim. ., ;f the extent defendants assert that Labor Law § 240(1) does not apply because plaintiffs injury •I was not the result of the kind of elevation-related risk contemplated by t~e statute, such assertion i is without merit. Specifically, defendants assert that plaintiff and the pipe scaffold were both on i the same level and the highest point of the pipe scaffold was seven feet eight inches while ' :I plaintiff is only five feet four inches, thus establishing that there was no physically significant I elevation differential between plaintiff and the falling scaffold in order t~ fall under the ' protections of Labor Law §240(1 ). However, the Court of Appeals has ~eld that a "plaintiff is ,. '1 not precluded from recovery under section 240(1) simply because he and' the [object] that struck him were on the same level." Wilinski v. 334 E. 92nd Hous. Dev. Fund Gorp., 18 N.Y.3d 1, 6-7 ,, :, (2011). Rather, the court found that a defendant may still be liable under that section due to the I ;i amount of force generated by the object and whether the plaintiff suffered harm that "flow[ ed] ,i ~! directly from the application of the force of gravity to the [object]." Id (citing Runner v. New ·I I York Stock Exch., Inc. 13 N.Y.3d 599 (2009)); see also McCallister, 92 J\.D.3d at 928-29 :1 ("[a]lthough the base of the scaffold was at the same level as the plaintiffiand the scaffold only " fell a short distance, given the combined weight of the device and its load, and the force it was I ~t able to generate over its descent, this difference was not de minimus.") ~ere, it is irrelevant that the base of the pipe scaffold and plaintiff were located on the same level ~s the force generated ·1 by the limestone panel onto the pipe scaffold was immense considering it's weight and size, which caused the scaffold to tip over onto plaintiffs head. Further, here! the elevation-related 7 8 of 16 [* 8] risk was much greater than defendants contend as plaintiff was on his knees when his accident occurred, and thus, much further away from the top of the scaffold than ~.f he was standing upright. Third-party defendant All Day and defendants' assertion that Labor Law § 240(1) does not apply because the "pipe scaffold" was not actually a scaffold by definition but rather a gantry because it lacked a platform and thus, does not fall within the list of protective devices enumerated in the statute, is without merit. At the time of plaintiffs accident, the apparatus at issue, whether it is a "scaffold," a "gantry," or something else entirely, ~as being used to hoist a " limestone panel, and thus its collapse and subsequent injury of plaintiff i~ most definitely a risk contemplated by 240(1) as a "hoist" is a safety device enumerated in the'!statute. The fact that it lacked a platform on which workers could stand is irrelevant for a determination of whether it ·, constitutes a safety device of the kind enumerated in the statute. Third-party defendant All Day's assertion that defendants may n<;>t be held liable under Labor Law§ 240(1) because plaintiff was a recalcitrant worker because defendants supplied the workers with pallet jacks and other scaffolds to use for the work they were performing and that they instead decided to use a "pipe scaffold" which was not suitable for the task is without merit. To support a "recalcitrant worker" defense, a defendant must show "that the safety device in question was both available and visibly in place at the immediate worksite of the injured employee" and that the employee "deliberately refused to use it." Powers v. Lino Del Zotto and Son Builders Inc., 266 A.D.2d 668 (3d Dept 1999). See also Gallagher v. New York Post, 14 ' N.Y.3d 83 (2010)(granting plaintiffs motion for summary judgment on his 240(1) claim on the ~ I ground that "[t]here is no evidence ... that [plaintiff] knew where to find the safety devices that ; 8 9 of 16 [* 9] .,; [defendant] argues were readily available or that he was expected to use 'them" and there was no I evidence "that [plaintiff] had been told to use such safety devices.") Indeed, it is well-settled ' that "[t]he mere presence of [safety devices] somewhere at the worksite does not establish 'proper protection."' Zimmer v. Chemung County Performing Arts. Inc., 65 N.Y.2d 513, 524 (1985). See also Hall v. Cornell Univ., 205 A.D.2d 872, 874 (3d Dept ~ 994)("the mere presence i of safety devices at the worksite does not diminish [a] defendant's liability.") Here, All Day fails to raise an issue of fact as it has failed to provide any evidence that plaintiff saw the pallet jacks or other scaffolds on the date of his accident; that any employee of ,, ' defendants advised plaintiff of the existence of the pallet jacks or other spaffolds at the worksite 'f on the date of his accident; or that plaintiff was instructed or directed to use the pallet jacks or other available scaffolds on the date of his accident and refused to do so. To the contrary, plaintiff testified that on the date of his accident, he and his coworkers were directed by their supervisor to put together the pipe scaffold with an I-beam and pulley in: order to move the ' l limestone panels. Thus, as there is no evidence that defendants "provided" plaintiff with the pallet jacks and other scaffolds on the date of the accident and that plaintiff deliberately refused to use said devices, the mere fact that said devices had previously been available to plaintiff and his co-workers is insufficient to raise an issue of fact to defeat plaintiff s'imotion. ,f Additionally, to the extent All Day asserts that defendants may not be held liable under Labor Law§ 240(1) because plaintiff was the sole proximate cause of hi~ accident based on his failure to use other available devices, such assertion is without merit. Even if plaintiff was a proximate cause of the accident in using a "pipe scaffold" to transport th~ limestone panels, this I court finds that defendants' failure to provide plaintiff with a sturdy scaffold or safety device to 9 10 of 16 [* 10] prevent the accident from occurring was also a proximate cause of the accident and it is wellsettled that there can be multiple proximate causes for a workplace accident. See Pardo v. Bialystoker Ctr. & Bikur Cholim, 308 A.D.2d 384 (1st Dept 2003). To the extent plaintiff seeks an immediate trial on the issue of damages on his 240( 1) claim, said trial will be held in the normal course of litigation after the parties go through mediation and the action is referred to a trial judge. I The court next turns to defendants/third-party plaintiffs Roza and Skyline's cross-motion ,, I for summary judgment dismissing plaintiffs complaint. As an initial matter, that portion of " defendants/third-party plaintiffs' motion for summary judgment dismissing plaintiffs claim ,; ~ pursuant to Labor Law § 240(1) is denied as this court has granted plaintiffs motion for summary judgment on that issue. However, that portion of defendants/third-party plaintiffs' motion for summary judgment dismissing plaintiffs claim pursuant to Labor Law§ 241(6) is granted without opposition. Additionally, defendant/third-party plaintiff Roza's motion for summary judgment dismissing plaintiffs Labor Law§ 200 and common law negligence claims against it is granted without opposition. Further, defendant/third-party plaintiff Skyline's motion for sum~ary judgment dismissing plaintiffs Labor Law § 200 and common law negligence claims is granted. "Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place .to work." Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877 (1993). "An implicit precondition to this duty 'is that the party charged with that responsibility have the ' auth~rity to control the If activity bringing about the injury."' Id., citing Russin v. Picciano & Son, 54 N.Y.2d 311, 317 ( 1981 ). "[W]here such a claim arises out of alleged defects or dangers drising from a 10 11 of 16 [* 11] I '! ;I subcontractor's methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the 'f operation." Ross v. Curtis-Palmer Hydro-Elec. Co., 81N.Y.2d494, sd~ (1993). "This rule is an outgrowth of the basic common-law principle that 'an owner or gene~al contractor [sh]ould not be held responsible for the negligent acts of others over whom [the owner or general .i contractor] had no direction or control."' Id., citing Allen v. Cloutier CoiJstr. Corp., 44 N. Y .2d 290, 299 (1978). In the instant action, defendant/third-party plaintiff Skyline has ~jstablished its prima facie right to summary judgment dismissing plaintiffs Labor Law§ 200 and ~ommon law negligence claims on the grounds that it did not supervise, direct or control plaintiffls activities. As an ·i initial matter, plaintiff testified that on the date of his accident, he did not receive any instruction . ,• ··1 or supervision from an employee of Skyline. Indeed, plaintiff testified that on the date of his ' i accident, he only received instructions from his direct supervisor, Jorge;'.and not from any f employee of Skyline. " In response, neither plaintiff nor All Day have put forth any evid~nce to raise an issue of I fact sufficient to defeat defendant/third-party plaintiff Skyline's motion for summary judgment '~ dismissing plaintiffs Labor Law § 200 and common law negligence clal~s. Although plaintiff and All Day assert that Skyline's employees did indeed supervise, directJand control plaintiffs activities, such assertion is belied by the evidence in this case. Specific~lly, they point to the testimony of Skyline's Project Manager, Kevin Cahill, which references ff eddy Psionos, Skyline's ')ob super," and James Trimgas, the "safety guy." However, ·~r. Cahill did not testify that said individuals supervised, directed or controlled plaintiffs activities on the date of 'i i the accident. With regard to the "job super,'' Mr. Psionos, Mr. Cahill testified that he was j ·' 11 12 of 16 [* 12] I responsible for "supervision" but that "[h]e would stop by [the Project site] for an hour or two a day." Additionally, with regard to the "safety guy," Mr. Trimgas, Mr. Cahill testified that he "would go by [the Project site] once a week or sometimes twice a week,:ijust to check on the site and talk to the men" and give safety talks. Neither plaintiff nor All Da~ have provided any .,, testimony from Mr. Cahill that either Mr. Psionos or Mr. Trimgas supervised, directed or controlled plaintiffs activities, either on the date of the accident or at other times. Indeed, Mr. I I Cahill only testified that Mr. Psionos and Mr. Trimgas were at the Project during limited 1 amounts of time performing, at most, general supervision. However, it, is well-settled that evidence of general supervisory control, presence at the worksite or authority to enforce general safety standards is insufficient to establish the necessary control over the work activity that ,, ;i caused the injury. See Alonzo v. Safe Harbors of the Hudson Housing Dev. Fund Co., Inc., 104 ,, A.D.3d 446 (1st Dept 2013). Further, to the extent All Day points to other individuals i referenced during Mr. Cahill' s deposition, such references fail to raise an issue of fact as Mr. Cahill did not know whether said individuals were even employed by Skyline let alone whether they supervised or controlled plaintiff's activities. Finally, the court turns to defendants/third-party plaintiffs' moti~n for summary judgment on their third-party complaint against All Day and an Order directing All Day to defend and indemnify them in the instant action. As an initial matter, the contentioh by All Day that thirdparty plaintiffs may not proceed with the third-party action on the ground that they have failed to comply with a condition precedent of the contract that the parties mediatie before commencing an action is without merit. It is well-settled that a contractual right to mediation prior to commencing arbitration or a lawsuit may be waived by the party assertirlg the defense based on said party's degree of participation in the litigation. See Stark v. MolodSpitz DeSantis & Stark. 12 13 of 16 [* 13] I P.C., 9 N.Y.3d 59 (2007). Specifically, when the party asserting the defense answered the r complaint, which included affirmative defenses but not the defense of failure to comply with a . t ., condition precedent, as well as participated in discovery during the litig~tion, courts have found ll that said party waived its right to mediation under the agreement. See qaetano Development Corp. v. Lee, 121 A.D.3d 838, 839 (2d Dept 2014)("[t]he Supreme Cou~ properly denied that branch of defendants' motion which was to dismiss the entire complaintiin Action No. 2 on the ground that the mediation and arbitration provisions of the subject contract barred Action No. 2. ) I The litigation conduct of[ said defendants] .. .in answering the complaint, asserting five affirmative defenses and a counterclaim, participating in discovery ... were clearly inconsistent 'l "i with the defendants' contention that the parties were obligated to settle their differences by ,;f .I arbitration or mediation. ·Therefore, such conduct constituted a waiver ~f these rights.") In the 't present case, All Day has waived any defense based on failure to mediate based on its participation in this action without objection. ·I -.r . Turning to the merits of the summary judgment motion, this coutt denies ' 1 defendants/third-party plaintiffs' motion for summary judgment on their claim for contractual indemnification. A party is entitled to contractual indemnification wheh the intention to L :1 indemnify is "clearly implied from the language and purposes of the entire agreement and the ·1 surrounding circumstances." Torres v. LPE Land Dev. & Constr., JncJ54 A.D.3d 668 (2d Dept I ., 2008). A party seeking contractual indemnification "must prove itself free from negligence, I because to the extent its negligence contributed to the accident, it cannot be indemnified ~ therefor." Cava Constr. Co., Inc. v. Gealtex Remodeling Corp., 58 A.0:3d 660, 662 (2d Dept ., 2009). :I -~ Here, defendants/third-party plaintiffs have failed to establish th~ir prima facie right to 13 14 of 16 [* 14] summary judgment on their claim for contractual indemnification against All Day, including ~! indemnification for attorney's fees. Pursuant to Section 4.6.1 of the Contract, To the fullest extent permitted by law, [All Day] shall indemnify and hold harmless [Roza], [Skyline], ... from and against claims, damages, losses and expenses, including, but not limited to I reasonable attorney's fees ... arising out of or resulting from performance of [All Day's] Work under this Subcontract, provided that any such claim, damage, loss or expense is attributabl~ to bodily injury .. .but only to the extent caused by the negligent acts or omissions of[All Day}, [All Day's] Subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder .... (emphasis added). Based on this contractual provision, this court finds''that defendants/thirdparty plaintiffs have failed to establish their right to summary judgment hn their claim for 1 contractual indemnification against All Day as it has not been determined that plaintiffs bodily injury claims were caused by the negligent acts or omissions of All Day; anyone employed by All Day or by plaintiff himself. Defendants/third-party plaintiffs' requ~st that if this court finds that it is premature to grant them summary judgment on their claim for contractual indemnification, then it issue a conditional grant of summary judgment on that issue is denied as it is improper to grant summary judgment, even conditionally, where th~re are issues as to whose negligence caused the plaintiffs accident. See Bellefleur v. Newark Beth Israel Med. Ctr., 66 A.D.3d 807, 809 (2d Dept 2009)("the Supreme Court should not have conditionally granted that branch of the third-party plaintiffs' motion for summary judgment on their cause of action for contractual indemnification, as there are triable issues of fact as to whose negligence, if any, caused the plaintiffs accident.") I Additionally, defendants/third-party plaintiffs' motion for summary judgment on their third-party complaint's claim for breach of contract against All Day for failure to procure 14 15 of 16 [* 15] insurance is denied. Defendants/third-party plaintiffs assert that All Day has breached the portion of the Contract that requires All Day to name Skyline and Roza as additional insureds on its liability insurance policy. Specifically, defendants/third-party plaintiffs assert a claim for breach of contract against All Day based solely on All Day's insurer's refusal to accept Skyline and Roza's tender of their defense in the action. Indeed, they do not allege that All Day failed to name them as additional insureds on its policy. However, this court finds that ' I defendants/third-party plaintiffs have failed to establish their primafacie right to summary judgment on said claim as All Day's insurer's failure to defend Skyline and Roza is not evidence that All Day breached their agreement as a matter of law. ' To the extent defendants/third-party plaintiffs move for summary judgment on the remainder of their third-party complaint, which includes claims for comti-ion law indemnification and contribution, their motion is denied as they have failed to brief said arguments in their ; ,, motion papers. Finally, that portion of defendants/third-party plaintiffs' motion papers which seek summary judgment dismissing All Day's counterclaims for indemnification, contribution and ,, breach of contract is denied as defendants/third-party plaintiffs failed to :move for such relief in their Notice of Motion. Accordingly, the motions are resolved as set forth herein. This constitutes the decision and order of the court. 15 16 of 16

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