Farez v Elk Home Partners, LP

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Farez v Elk Home Partners, LP 2016 NY Slip Op 33125(U) September 15, 2016 Supreme Court, Westchester County Docket Number: 71277/14 Judge: Mary H. Smith Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] WESTCHESTER COUNTY CLERK 09/19/2016 10:41 AM NYSCEF DOC. NO. 54 INDEX NO. 71277/2014 RECEIVED NYSCEF: 09/16/2016 DECISION DECISION AND ORDER ORDER statutory To commence commence the statutory period period of appeals appeals as of right right (CPLR 5513[a]), 5513[a]), you are advised advised (CPLR copy of of this Order, to serve serve a copy this Order, with notice notice of of entry, entry, upon upon all with parties. parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME lAS PART, WESTCHESTER COUNTY IAS PART, WESTCHESTER COUNTY Present: HON. HON. MARY MARY H. SMITH SMITH Present: Supreme Court Supreme Court Justice Justice ______________________________________________________ -----------------------------X -----------------------------------------------------------------------------------X RICHARD FAREZ, FAREZ, RICHARD Plaintiff, Plaintiff, MOTION DATE: DATE: 9/9/16 MOTION 9/9/16 INDEX NO.: 71277/14 71277/14 INDEX -against-againstELK HOME HOME PARTNERS, PARTNERS, LP AND MURPHY MURPHY BROTHERS BROTHERS CONTRACTING, INC., INC., CONTRACTING, Defendants. Defendants. ______________________________________________________ ------------------------------X ------------------------------------------------------------------------------------X MURPHY BROTHERS BROTHERS CONTRACTING, CONTRACTING, INC., MURPHY Third-Party Plaintiff, Third-Party Plaintiff, -against-againstET KENNEDY KENNEDY COASTAL COASTAL CONSTRUCTION CONSTRUCTION CO., INC., Third-Party Defendant. Defendant. Third-Party ______________________________________________________ ------------------------------X ------------------------------------------------------------------------------------X The papers numbered numbered 1 to 6 were this motion motion by third-party third-party The following following papers were read on this defendant ET Kennedy Kennedy Coastal Coastal Construction Construction Co., Inc. for for an Order Order pursuant pursuant to CPLR CPLR defendant subdivision (a), paragraphs paragraphs 1 and/or complaint. 3211, subdivision and/or 7, dismissing dismissing the the third-party third-party complaint. Papers Numbered Numbered Papers 1 of 6 , - [* 2] Notice Notice of Motion Motion -Affidavit - Affidavit (Kennedy) (Kennedy) - Exh. - Memorandum Memorandum of Law' Law' .......................... 1-4 Answering Answering Affirmation Affirmation (Butterly) (Butterly) .. .... ... ... ... .... ... ... ... ... .... ... ... ... ... .. ... ... ... ... .. ... ... ... ... ... ... . 5 Replying .... ...... .......... .......................... .............. ........................ 6 Replying Memorandum Memorandum of Law Law.................................................................................... Upon Upon the foregoing foregoing papers, papers, it is Ordered Ordered that that this motion motion by third-party third-party defendant defendant ET Kennedy Kennedy Coastal Coastal Construction Construction Co., Inc. ("ET ("ET Kennedy") Kennedy") for an Order Order pursuant pursuant to CPLR CPLR 3211, subdivision subdivision (a), paragraphs paragraphs 1 and/or and/or 7, dismissing dismissing the third-party third-party complaint complaint is disposed disposed of as follows: follows: This This is a personal personal injury injury action, action, commenced commenced on December December 11, 2014, 2014, wherein wherein plaintiff plaintiff Farez Farez seeks seeks to recover recover for personal personal injuries injuries he allegedly allegedly had sustained, sustained, on April 10, 2014, while 10,2014, while working working at a construction construction site in the course course of his employment employment by thirdthirdparty party defendant defendant ET Kennedy. Kennedy. Plaintiff Plaintiff alleges alleges that that both defendants defendants ELK Home Home Partners, Partners, LP ("Elk Home") Home") and Murphy Murphy Brothers Brothers Contracting, Contracting, Inc. ("Murphy ("Murphy Bros.") Bros.") had been been general general contractors contractors at the work work site; ET Kennedy Kennedy had been hired as a subcontractor subcontractor by Elk Home Home Partners, Partners, LP to perform perform certain certain work work at the site. Plaintiff Plaintiff alleges alleges that that both defendants defendants had been negligent negligent and had violated violated statutes, statutes, codes codes and ordinances ordinances which which proximately proximately had caused caused plaintiff's plaintiff's injuries. injuries. Eighteen Eighteen months months after after commencement commencement of this action, action, defendant defendant Murphy Murphy Bros. had filed its third-party third-party complaint complaint against against ET Kennedy Kennedy asserting asserting causes causes of action action for for common common law and contractual contractual contribution contribution and/or and/or indemnification indemnification against against ET Kennedy Kennedy in the event event that that Murphy Murphy Bros. is liable liable to plaintiff. plaintiff. Plaintiff Plaintiff had pursued pursued Workers' Workers' Compensation Compensation benefits. benefits. The The written written Decision Decision made made following following a Workers' Workers' Compensation Compensation hearing, hearing, conducted conducted on October October 22, 2014, 2014, was that that plaintiff plaintiff had sustained sustained a work-related work-related injury injury while while in the employment employment of ET Kennedy; Kennedy; Movant properly 'Movant properly should should have have included included copies copies of the pleadings pleadings on its motion. motion. 1 -2-2- 2 of 6 [* 3] through awards had had been been made made to plaintiff for for 8.6 8.6 weeks weeks of disability disability from from April April 11, 11, 2014 2014 through to plaintiff awards for the period weeks for June 11, 11,2014, and an an award award of of temporary temporary total total disability disability of 19.2 19.2 weeks period of of 2014, and June 201'4. June 11, 11, 2014 2014 through through October October 23, 23,2014. June Presently, third-party third-party defendant defendant ET ET Kennedy Kennedy is moving moving to dismiss dismiss the the third-party third-party Presently, complaint, arguing arguing that that third-party plaintiff Murphy Murphy Bros. improperly improperly is attempting attempting to third-party plaintiff complaint, circumvent the the Workers' Workers' Compensatio Compensationn Laws and that that this this matter matter does does not fall within within the the circumvent ambit of of exceptions exceptions to to the the Workers' Workers' Compensatio Compensationn Law Law because because third-party third-party plaintiff plaintiff neither neither ambit fact plaintiff has alleged alleged that that plaintiff plaintiff had had sustained sustained a "grave "grave injury," injury," and in fact plaintiff had not has that had been sustained a "grave "grave injury," injury,"22 nor nor is is there written contract contract that been entered entered into into prior prior there a written sustained to the the April 10,2014, injury wherein wherein ET Kennedy Kennedy specifically specifically had agreed agreed to contribution contribution for 2014·, injury April 10, to or indemnificat indemnification of a a third-party. third-party. Third-party Third-party defendant defendant ET Kennedy Kennedy asserts asserts that that it had ion of or entered into into a a written written agreement agreement with with ELK ELK Home, Home, on February February 5, 2015, 2015, ten months months after after entered plaintiff's alleged alleged incident, incident, wherein wherein itit had had agreed agreed to indemnify indemnify and hold ELK ELK Home Home and its plaintiff's "consultants, , and and agents agents and and employees employees of any of of them," them," harmless harmless for for the the negligent negligent acts acts "consultants or omissions omissions of of ET ET Kennedy, Kennedy, and and anyone anyone directly directly or indirectly indirectly employed employed by it, and that that the the or exception set set forth forth in in section section 11 11 of of the the Workers' Workers' Compensatio Compensationn Law Law therefore therefore does does not exception apply.33 Moreover, Moreover, defendant defendant ET ET Kennedy Kennedy argues argues that that Murphy Murphy Bros. is not a party party to the apply. subject Indemnificat Indemnification that ET Kennedy Kennedy had not agreed agreed to contribute contribute to or Agreement, that ion Agreement, subject indemnify Murphy Murphy Bros., Bros., and and thus thus that that no no viable viable third-party third-party claims claims exists exists for for this this reason, reason, indemnify as well. as 2That plaintiff plaintiff had had not not sustained sustained a a statutory statutory "grave "grave injury" injury" is not in dispute. dispute. ·That 'No copy of of this this Indemnificat Indemnification Agreement is included included in the the record record at bar. ion Agreement No copy 3 -3-3- 3 of 6 [* 4] fatally nt fatally as mova d, as Third-party ET Kenn Kennedy's motionn is denie denied, movant opposed motio edy's opposed defe ndan t ET Third-party defendant Cantella v. Cantella Aleksandrowicz v. n. See has include copiess of of all all plead pleadings motion. See Aleksandrowicz ings in its motio de copie to inclu failed to has failed rd th Dept. 2010); Soul A.D.2d 825 da, 232 & Co., Co .. Inc., Inc., 72 A.D.3dd 1580 1580 (4 (41h Lozada, 232 AD.2d 825 (3 (3'd Dept Dept.. Dept. 2010); Soulee v. Loza 72 AD.3 & ). 1996). 1996 pens ation Workers' Com s. Workers' In any any even event,t, the motionn would deniedd on its merit merits. Compensation be denie would be the motio In ity othe r liabil any other of any Law § S 11 11 provi provides an empl employer's liability place of liability "exclusive and in place ity is "exclusive oyer's liabil that an des that Law damages, er damages, to recov entitled to otherwise entitled whatsoever, [an] empl employee ... or personn otherwise recover any perso or any oyee ... to [an] whatsoever, to therefrom arising therefrom liability arising contribution or indem indemnity, ... on on account [an] injury injury or deat deathh or liability of [an) acco unt of nity, ... ibution or contr or caus include a shall not include ..."" and and that that "the indemnity and contribution a claim claim or causee of of contribution shall nity and terms indem "the terms ... contract written contract a written sion in actionn for contribution indemnification upon a provi provision in a based upon nification based or indem ibution or for contr actio contract term in a term ver, a d). Howe entered into prior prior to accident ..."" (Emp (Emphasis added). However, in a a contract hasis adde ent ... the accid to the ed into enter evidence wher e evidence actively where ed retro executed after a a plain plaintiff's accident may be appli applied retroactively ent may tiff's accid uted after exec "was work "was contractor's work the contractor's ining to the establishes as a a matt matter agreement pertaining ement perta the agre that the law that of law er of lishes as estab that of that apply as that itit apply intended that the partie madee 'as [a pre-a pre-accident date],, and and that partiess intended as of that the ccident date] of [a 'as of mad citing (1 stst Dept 442, 443 (1 2d 442,443 date."." Pena Pena v. v. Chat Chateau AD.2d Dept.. 2003 2003),), citing Corp., 304 A.D. Woo dme re Corp., eau Woodmere date 2). 727 (200 d. 98 N.Y.2 Iv. dism Stabile 291 AD.2d 395, 396, Iv. dismd. N.Y.2dd 727 (2002). A.D.2d 395, Viener, 291 v. Viener, Stabile v. this re this ically befo Agre eme nt is not phys While a copy copy of subject Indemnification physically before nification Agreement ct Indem the subje of the Whil e a that said case law, orting case cited supp Court,t, third-party plaintiff Murphy Bros. argues, supporting law, that said argues, with cited hy Bros. tiff Murp third-party plain Cour 2013 Octo ber 1 dated is Work" dated "Start of Work" February 2015,, Agreement provides is October 1,2013, that the "Start des that Agre eme nt provi 5, 2015 uary 5, Febr I I therefore may that it 2014, and that about July, 2014, with all work havingg been been completed, it therefore may on or about completed, on work havin with all the for the execution for time of intended at the time reasonably be infer inferred partiess had of execution had intended the partie that the red that onably be reas obligations; de past and to inclu effect and Indemnification Agreement have retro retroactive include past obligations; active effect to have eme nt to mnification Agre Inde rmissibly ered impe would be rend otherwise, Murphy Bros. argues parties' rendered impermissibly Agre eme nt would s' Agreement the partie argues the hy Bros. wise, Murp other -4-4- 4 of 6 [* 5] meaningless. meaningless. Moreover, contrary to ET Kennedy's Moreover, contrary Kennedy's contention, contention, Murphy Murphy Bros. Bros. argues argues that the that the subject subject Indemnification Indemnification Agreement Agreement provides provides for ([Le., Elk Elk for indemnification indemnification to to the the Owner Owner ([i.e., Homes] Homes] and its "consultants, "consultants, agents agents and employees employees of any any of of them," them," which which later later terms terms are are not defined Agreement. Murphy defined in the Agreement. Murphy Bros. argues argues that that itit had had been been a a consultant consultant and/or and/or agent agent of Elk Home, Home, and therefore therefore that that it too is entitled finds entitled to indemnification. indemnification. This This Court Court finds that ET Kennedy's that Kennedy's argument argument that that Murphy Murphy Bros. would have been been specifically in the would have specifically named named in the Indemnification Agreement if in fact Indemnification Agreement afforded the benefit thereunder, thereunder, and and the the fact it had been afforded the benefit fact that fact that it had not been been so name name means means that it is not entitled entitled to said is, by itself, said coverage coverage is, by itself, insufficient insufficient to defeat Murphy Bros.' Bros.' claim. claim. defeat Murphy This Court This Court is constrained constrained to note note that been certified ready and and that this action action has has been certified trial trial ready a note of issue fact has been issue in fact been filed, filed, and yet neither neither party, without without any any explanation, explanation, has has made submissions and/or, made the proper proper evidentiary evidentiary submissions seemingly had had been been necessary, necessary, and/or, as seemingly annexed testimony in support annexed any any deposition deposition testimony support of their respective positions. positions. their respective ln In light light of the Pena Pena - Stabile Stabile body body of law, supra, supra, and upon upon application application of of the the principles principles of of law on a motion motion to dismiss, dismiss, and specifically that the plaintiff is is entitled specifically that the plaintiff entitled to to the the benefit that can be implied benefit of of every every possible possible inference inference that implied by fair intendment, fair and reasonable reasonable intendment, see Urias nd Dept. Urias v. Daniel Daniel P. Buttafuoco Buttafuoco &Assoc., & Assoc., PLLC, 120A.D.3d 120 A.D.3d 1339, 1341-1342 1341-1342 (2 (2nd Dept. nd Dept. 2014); 2014); Shields Shields v. School School of Law of Hofstra Hofstra University. University, 77 A.D.2d 868 (2 (2nd Dept. 1980), 1980), A.D.2d 867, 867,868 this Court third-party defendant Court finds finds that that third-party defendant ET Kennedy Kennedy has not not established as a a matter matter of of established as law, as had been been its burden burden herein, herein, that third-party cause cause of of action action for indemnification that no third-party for indemnification and/or contribution is stated. and/or contribution stated. Accordingly, Kennedy's motion motion is is denied. denied. Accordingly, ET Kennedy's The parties shall appear The parties shall appear in the Settlement Settlement Conference Conference Part, Part, room room 1600, 1600, at at 9: 9: 15 15 -5-5- 5 of 6 [* 6] a.m., 2016. a.m., on October October 4, 4,2016. Dated: Dated: September September /5 ,,2016 2016 ,5 White White Plains, Plains, New New York York H. SMITH ~RY H. J.S.C. J.S.C. Denlea & Carton, Carton, LLP Denlea Attys. For 3rd P. Deft. Attys. Westchester Park Drive, Suite Suite 41 410O 2 Westchester White Plains, Plains, New York 10604 10604 White New York Marks, O'Neill, O'Neill, O'Brien, O'Brien, Doherty Doherty & Kelly, P.C. Marks, Attys. For Deft./3rd Deft./3rd P. Pltf. Attys. Saw Mill River River Road 530 Saw Elmsford, New New York York 10523 10523 Elmsford, Frances Schiel Schiel Doyle; Settlement Settlement Conference Conference Part Frances -6-6- 6 of 6

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