LBW Enters., LLC v CEMD El. Corp.

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LBW Enters., LLC v CEMD El. Corp. 2018 NY Slip Op 30543(U) March 28, 2018 Supreme Court, New York County Docket Number: 653912/2013 Judge: Jennifer G. Schecter 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: NEW, YORK COUNTY CLERK 03/30/2018 04:13 1] NYSCEF DOC. NO. 128 p~ INDEX NO. 653912/2013 RECEIVED NYSCEF: 03/30/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 57 ----------------------------------------x I LBW E~TERPRISES, LLC and KAM CHEUNG CONSTRUCTION, INC., Index No.: 653912/2013 Plaintiffs, i: -against- i CEMD J;ELEVATOR CORP. d/b/ a THE CITY ELEVATOR co. I Defendant. ---------------------------------------x i Sche,cter, J. : In motion sequence number 005, defendant CEMD Elevator Corp. d/b/a The City Elevator Co. (CEMD) moves for summary judgment dismissing the complaint. In motion number sequence 006, plaintiffs LBW Enterprises, LLC (LBW) and Kam Cheung Construction, Inc. (Kam) I move for summary judgment on their claims for contractual and common-law indemnification. ~Both motions are denied. Background William Flagler, a CEMD employee, commenced a personalinjury action (Flagler Action) against LBW and Kam after he was: injured while working on a construction project. LBW owned the construction site (Premises) and Kam was the general contractor on the project Sequence 005 [Sup 05] , (A'ffirmation in Support of Motion Ex A) . Flagler was injured when a steel elevator platform--or plate--fell on him while he and 2 of 15 [* WILED: NE~ YORK COUNTY CLERK 03/30/2018 04:13 p~ 2] INDEX NO. 653912/2013 NYSCEF DOC. NO~ 128 RECEIVED NYSCEF: 03/30/2018 LBW Enterprises, LLC v CEMD Elevator Corp. Index No. 653912/13 Page 2 !I fi i! ~ his co-workers were transp6rting t. . . ( Af f l1rmat1on in Support 006 [Sup it into 06], Ex A at i the flfl 1111 Premises 23-24). LBW . and Kam settled with Flagler for $400,000 .in April 2013. I' ·. . It LBW and Kam commenced this action seeking contractual and 11 ' common- 1 aw 11 . . . . in d emn1 f ication .. . . in connection w1 t h the F 1 ag 1 er II 11 Acti!on. ' II Depd~ition of William Flagler I! 1 ~On If work II the date of the and LibJoya met with informed . accid~nt, Chris him William Flagler arrived at Libroya that the (Libroya), day's his assignment foreman. would be If buirding a car lift requiring four steel plates (Reply 05, Ex II A [Flagler Tr] at 46-47). All instructions on how to perform JI 1! his :\york came from CEMD (id. cit 122) . .I It was his first day at the !!Premises and, although he'. had seen it . done before, it was n hislfirst time moving large six by 20 steel plates (id. at 30, •I 35) j1 . " Jj A tractor trailer with a flat bed delivered the steel i plates to the Premises (Flagl.er Tr at 54-56) :1 The first two i plates were each taken off tli.e flat bed by a steel arm on the 11 'I 11 truck (id. at 55-56). For each plate, Libroya and another II CEMD employee "strapped the~ metal" with· canvas straps and 'I onto the straps a chdin, which was connected to and hoo~ed l operated by the truck (id. at 56-58). 11 11 II 3 of 15 There was a locking [* 3] FILED: NEW YORK COUNTY CLERK 03 30 2018 04:13 PM NYSCEF DOC. NOi 128 RECEIVED NYSCEF: 03/30/2018 II LBW Enterprises, LLC v CEMD Elevatbr Corp. Index No. 653912/13 Page 3 i I ~ INDEX NO. 653912/2013 . .II d ev1ce attac h e d : to t h e canvas straps · (id: at 58). All the II truck driver did was press the button to operate the winch (id1I! at 58) . Each steel plat' was lifted, reited on its long edgiand lifted off the flatb~d with part of it resting on the sid~walk and the other part r~sting on the street (id. at 59) . i ' ' 1 Wheri the steel plate was pla.c. ed on the sidewalk, the winch It i from the truck was disconnected (id. at 63). 11 then put rollers beneath buiJding with a five-foot thi 1! process , th~ CEMD employees plate and pushed it into the met~l wedge* (id. at 59-60) During Flag1 er was j us f "steadying"' the plate with his co-Jorkers (id. at 61). One~ i in the buil~ing, the plate was '• propped on a pillar or beam, 'tied off by a rope to the beam I andJthen the rollers were removed (id. at' 64-65). :; I The third steel plate was moved differently than the . 1[ first two ( Flagler Tr at 68) The movement from the truck to . the JI sidewalk was the same . . Libroya, however, then hooked up a cable from the garage of the Premises to the plate (id. at l 68-70). II at 145) . The cable was about;40 feet inside the building (id This "winch like device" was set up by Libroya and l[ thelibuilding's foreman and was operated by,Libroya (id. at 70, ii i ~ *A wedge is a bar on two wheels with a hook placed underneath the object that needs to be lifted. 11 I I 4 of 15 [* WILED: NE~ YORK COUNTY CLERK 03/3d/2018 04:13 p~ 4] NYSCEF DOC. NOir' 128 I RECEIVED NYSCEF: 03/30/2018 , LBW Enterprises, LLC v CEMD Elevator Corp. 73) I -~ INDEX NO. 653912/2013 Index No. 653912/13 Page 4 The cable pulled the plate and rollers into the building 11 :1 as opposed to being pushed by CEMD employees with a wedge (id . .I at 70). I I I , Flagler testified that he was I injured when the cable j ' attached to the fourth plate snapped about 10-15 feet inside the ·building (Flagler Tr at 75, 81-83, that the plate "came off the truck. the rollers were applied, bui~ding] i th~ 148). He explained It was standing upright, cable for the pulley [from the was applied [to the canvas straps]" (id. at 80-81). ' I The :cable began pulling the platform into the building when ' the: "the cable snapped on the pulley" (id. at 81). The platform then fell on Flagler' s leg (id. at 83). · Before the inc~dent, he observed the cable and it was not rusted or I fraxed and did not exhibit any problems when used (id. at 86! 87) J After the incident, Flagler observed the cable and saw fra~ed I metal close to the hook (id. at 85) . When asked who provided the metal wedge, Flagler stated I 1J that it belonged to CEMD (Flagler Tr at 60). i . prov1 d e d t h e ro 11 ers, II that was on the job" When asked who . . F 1 ag 1 er exp 1 aine d t h at it was (id. at 61). "stu ff When asked who provided I theJstraps, Flagler testified "I'm not sure if we had them or theltruck driver had them" 1ict. at 56, 79). 5 of 15 When asked about [* WILED: NEW~YORK COUNTY CLERK 03/3d/2018 04: 13. PM] 5] INDEX NO. 653912/2013 NYSCEF DOC. NO• 128 RECEIVED NYSCEF: 03/30/2018 :i LBW Enterprises, LLC v CEMD Elevator corp. Index No. 653912/13 Page 5 ! the cable, Flagler responded to the questions. He was not asked who owned the cable or associated devices. i Deposition of Philip Rudnick I IPhilip offi~er or Rudnick testified on behalf LBW. Though not an employee of LBW, he does consulting work for it I (Sup 06, Ex [Rudnick Tr] at 7-8). J the ·,; only general contractor on He stated that Kam was the project at (id. 22) . Rudnlck and Ben Wong, LBW's owner, would visit the Premises ! periodically and deal with pre~ident (id. at 22-24) Tommy Tsang, who was Kam' s LBW did not have any employees at ! the site and would not provide any direction for the work (id. I 1 at 2 6-27) . of He did not know who Kam' s foreman was on the date l he 1nc1 d ent . . t ( i.d . He on 1 y k new a b out F 1 ag 1 er's at 30-31 ) . accJdent from the accident report (id. .I at 35) . Depdsition of Tommy Tsang Tsang would visit the site about once a week (Supp 06, Ex K [Tsang Tr] I at 10, 14-15) Kam was responsible for the I general I progress of the project (id. at 1 7) . Each i I subcontractor had its own foreman at the Premises who would 11 II II report to Kam's foreman, Saleh (id. at 16-17). Other than Sallh, Kam had five or six employees cleaning the Premises and :r . . . . prov1 d 1ng sa f ety 1 1nes ( closing o f f areas where there was a I I 6 of 15 [* 6] WILED: NEW YORK COUNTY CLERK 03/30/2018 04:13,P~ INDEX NO. 653912/2013 NYSCEF DOC. NO, 128 RECEIVED NYSCEF: 03/30/2018 LBW Enterprises, LLC v CEMD Elevator Corp. safe~y concern) (id. at 19-20). Index No. 653912/13 Page 6 Saleh would make safety i i • observations i addition, and every I "take two care or of three them" weeks at (id. an 23). outside In safety conshltant visited the Premises (id. at 20-21) . !The subcontractors' foremen were responsible for safety I durihg delivery of materials ,la. . coorII inate with the (Tsang Tr at 23). subcontractors Kam would . to determine matJlials could be delivered and stored (id. 11. . . testi f ie d t h at it was t h e sub'• contractors' at 25). where Tsang . . responsi b i. 1 ity to 11. . ! • provi d e t h e equipment an d to transport materia 1 s f rom t h e curb ~ ' to the designated storage area,' and then the install site (id. i at 12, 43). Kam was only responsible for general supervision- ' -tolensure that nothing was obstructed and that people were :I able to pass through areas while materials were being Saleh work being I I transported (id. at 33, 43). If saw per~ormed in an unsafe manner, he had the authority to stop it I (id. at 58). Tsang testified that CEMD arranged for the elevator materials to be delivered to: the job site (Tsang Tr at 41) . He ~as unaware of how the pl~tes would be off loaded from the i delivery vehicle to the curb· (id.). equipment, Kam did not provide any including rollers or straps, 7 of 15 for movement of the [* WILED: NEW YORK COUNTY CLERK 03/30/2018 04:13 7] PM INDEX NO. 653912/2013 NYSCEF DOC. NO; 128 LBW RECEIVED NYSCEF: 03/30/2018 ~nterprises, I plat~s LLC v CEMD Elevator Corp. (id. at 44-45) . Index No. 653912/13 Page 7 He explained that during the delivery, I CEMD/ should have been there and that Saleh should have been i i there too (id. at 41) . I !Tsang heard about Flagler's accident from Saleh. Saleh I I toldl him that someone from CEMD was inJ"ured but that it was I not 1serious (Tsang Tr at 38-39) ·I I . . Deposition o f . Mite h e 11 He 11 man II j Mitchell [He~:lman Hellman Tr] at 9) . is CEMD' s I '' :! (Sup Ex 06, M In 2007, Edward Maziarz was CEMD' s vice preJident and was primarily Premises. ! 50, /81). president ~esponsible , for its work at the Maziarz he passed away in 2012 (id. at 11, 27, 36, CEMD employees were trained to install elevators. They had ·a supervisor, but the employees were mostly "self-directed ·; I on the day-to-day activities" (Hellman Tr at 48). Workers at •I .I theJPremises would receive their direction from either a CEMD foreman or Maziarz (id. at 50) . A Kam employee would provide coordination instructions like an "air traf fie controller" (id; at 51). CEMD provided its own machinery, equipment for its work (id. at 52-53) tools and The building's super ; was· "kind of in charge of ; things coming in and out and proyided the equipment to bring things in and out" such as the 8 of 15 [* [FILED: NEW\\ YORK COUNTY CLERK 03/30/2018 04: 13 PM] 8] NYSCEF DOC. NO~ INDEX NO. 653912/2013 RECEIVED NYSCEF: 03/30/2018 128 LBW Enterprises, LLC v CEMD Elevator Corp. Index No. 653912/13 Page 8 11 I rol~ers . to transport the eqdipment ldl . . .: (id. at 59) . Based on . t h ir -party information, he would think that the straps were f : also! supplied by Kam (id. at 60). I , !Hellman's understanding 6f the Flagler incident was that whilJ~ ~ transporting "a piece of:, equipment from the loading area . to the elevator shaft, a piece' of equipment broke" (Hellman Tr I,11 at 55) He believed the piece of equipment to be a strap II ~ I "they were using to pull [a plate]" (id. at 56, 69). II . . f I When Carl Deposition o traJsporting ~ Car 1 1 . Alongis, steel :i A ongis a CEMD employee, was he explained that plates, asked about there were . mulBiple methods such as usihg an A-frame or a "skate" and i that CEMD would provide such materials (Sup 06, Ex L [Alongis 11 a Tr] 1 t 2 4 - 2 7 ) . The method of 1 transporting large plates would I depend upon the work-site conditions and the supervisor at the par~icular II 32-33) . ~ job site would CEMD dec~de which method was used employees : w~re responsible for (id. at offloading . . : . materia 1 s at t h e Premises, b ut h e was not sure wh at equipment 11 ,. was~available there (id. at i 48-49) ; He testified that a winch would not be used to transport plates because it is not safe ~ II :~ as the plates would be too heavy for the winch (id. at 56-58). Alo~gis believed that each CEMD employee was responsible for 11 I' ;I 11 !I 9 of 15 [*~[F=I~L=E=D~:~N~E~W~!~Y~O=R=K~C=O~U~N~T~Y~C~L~E=R~K~~0~3L/~3~0~/~2~0~1~8~0~4~:~1~3~P~~ 9] NYSCEF DOC. NO~ 128 LBW Enterprises, LLC v CEMD Elevator Corp. 11, INDEX NO. 653912/2013 RECEIVED NYSCEF: 03/30/2018 Index No. 653912/13 Page 9 safety on the site because of the training they received (id. at i 44) . 'I I contracts ILBW and Kam entered into an agree~nt for the Premises (LBW-/Kam Agreement) (Sup 05, Ex F). The agreement provides: "3 . 3 . 1 [Kam] shall supervise and direct the [Kam] shall be solely Work for and have control over responsible construction means : [and] methods be fully and solely [Kam] shall for the job site safety of such responsible means [and] methods . Exhibit A the General Contractor shall provide at his own expense, all tools . hoisting facilities for materials and save [LBW] harmless . 6. 11. The General Contractor shall take all necessary precautions for safety II (Supp 05, Ex F) . ilThe A201-1997 agreement entered into between Kam and CEMD !1 mirrors many of the terms in the LBW/Kam Agreement provides in relevant part: "3. 3. 1 [CEMD] shall supervise and direct the Work [CEMD] shall be solely responsible for and have control over construction means [and] methods [CEMD] shall . ; be fully and solely responsible for the job site safety of such means [and] methods ··. 10 of 15 and [*[FILED: NEW1YORK COUNTY CLERK 03/30/2018 04:13 P~ 10] NYSCEF DOC. NO~ 128 INDEX NO. 653912/2013 RECEIVED NYSCEF: 03/30/2018 ' LBW Enterprises, LLC v CEMD Elevator Corp. Index No. 653912/13 Page 10 3.3.2 [CEMD] shall be responsible to [Kam] for acts and omissions of [CEMD' s] employees ,I 3. 4. 1 . . . [CEMD] shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery . transportation . ., necessary for proper execution and completion of the Work . 3.18.1 To the fullest extent permitted by law and to the extent claims, damages, losses or expenses are not covered by Project Management ;Protective Liability insurance purchased by [CEMD] [CEMD] shall indemnify and hold harmless [Kam] from and against claims, damages, losses and expenses including but not limited to attorneys' fees arising out of or resulting from performance of the ·Work, provided that such claim, damage, loss or expense is attributable to bodily injury . . but only to the~ extent caused by the negligent acts or omissions of [CEMD] [CEMD] shall be responsible for initiating, maintaining and supervising all safety precautions . '. . in connection with the performance of the Contract" 10.1.1 (Supp 06 at 13-17, Ex E). 1lcEMD moves for summary jU:ctgment dismissing LBW and Kam' s indekiification claims. LBW and Kam move for summary judgment I on their indemnification claims. "'The proponent of a summary judgment motion must make a prima facie showing of entitl~ment to judgment' as a matter of 11 of 15 [*[FILED: NEWuYORK COUNTY CLERK 03/30/2018 04:13 11] INDEX NO. 653912/2013 P~ NYSCEF DOC. NO: 128 RECEIVED NYSCEF: 03/30/2018 ; LBW Epterprises, LLC v CEMD Elevator Corp. Index No. 653912/13 Page 11 I law,,tendering sufficient evidence to eliminate any material issu~s of fact from the case'" (Santiago v Filstein, 35 AD3d ' 184, ;185-186 [1st Dept 2006], quoting Winegrad v New York Univ. Med. ;Ctr., 64 NY2d 851, 853 [i985]). The burden then shifts :1 to the motion's opponent to '"present evidentiary facts in if admi~sible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum of Art, 27 AD3d 227, I 228 [1st Dept 2006], citing Zuckerman v City of New York, 49 :1 NY2d!l 557, 562 [1980]; see also DeRosa v City of New York, 30 i AD3dl 323, 325 [1st Dept 2006]). If there is any doubt as to the 'existence of a triable ·fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223 !I 231 [1978]; Grossman v Anialgamated Rous. Corp., 298 AD2d I 224,: 226 [lst Dept 2002]) . Contractual Indemnification j"A party is entitled to full contractual indemnification prov ided that 1 the 'intention to indemnify can be clearly I i implied from the language and purposes of the entire agreement J and the surrounding facts and circumstances'" Atla·btic Scaffold & Ladder Co., II 70 quof~ng Margolin v New York Life Ins. (Drzewinski v NY2d 774, Co., [1987] , 32 NY2d 149, 153 [1973]; see Tanking v Port Auth. of N.Y. & N.J., 12 of 15 777 3 NY3d 486, [*[FILED: NEW,1YORK COUNTY CLERK 03/30/2018 04:13 PM] 12] INDEX NO. NYSCEF DOC. NO.; 128 653912/2013 RECEIVED NYSCEF: 03/30/2018 ; LBW Enterprises, LLC v CEMD Elevator Corp. Index No. 653912/13 Page 12 I 490 .[2004] ; Torres v Morse Diesel Intl., Inc., 14 AD3d 401, 1 I 403 ;[1st Dept 2005]) . !The indemnification agreement between CEMD and Kam is I clear and unambiguous and provides for indemnification upon a finding of negligence by CEMD (Supp 06, Ex Eat 3.18.1 [CEMD ., to provide indemnification to the "extent caused by the d I negligent acts or omissions" of CEMD] ) . 'I ' I !The only first-hand testimony in the record established that· Flagler's accident was caused by a cable snapping and causing a large steel plate to fall on his leg (Flagler Tr at .1 i 68-70, 81-83). This "winch like device" was allegedly set up by a JICEMD employee and a Kam employee and was operated by CEMD ; (id.·at 70, 73). Flagler explained that before the incident he observed the cable and it was not rusted or frayed and that it did not exhibit any problems when used (id. at 86-87) . n . The II record does not establish who provided the cable and whether 'I I it w~s operated properly. The testimony does not indicate that!the cable was defective or in disrepair, only that such ) a cable would generally not be used to move such large plates :1 (Flagler Tr at 86-87; Alongis Tr at 56-58). Additionally, the 11 deci~ion to use the "winch-like device" for the transport of I ; the third and fourth plates was not explained. 13 of 15 [*[FILED: NEW.YORK COUNTY CLERK 03/30/2018 04:13 13] P~ NYSCEF DOC. NO. 128 INDEX NO. 653912/2013 RECEIVED NYSCEF: 03/30/2018 ·I LBW Enterprises, LLC v CEMD Elevator Corp. Because, on this motion, Index No. 653912/13 Page 13 movants failed to meet the "heavy burden" of proof that CEMD was negligent, their motion is denied. Likewise, CEMD's motion is denied because it did I not establish that it was free from negligence. II · · · · Common- 1 aw in d emn1 f ication ! !LBW and Karo's motion for summary judgment on the commonlaw indemnification claim is also denied. vicariously liable may seek full i . party wh o 11 y respons1 b 1 e f A party held indemnification from the . or t h e acc1 d ent ( Mccart h y v Turner II I Constr., Inc., 17 NY3d 369, 374 [2011]). Significantly, the I ! one seeking indemnification "must prove not only that it was not guilty of any negligence beyond the statutory liability I ;1 but must also prove that the proposed indemnitor was guilty of somell negligence that contributed to the causation of the I '! acci9-ent for which the indemnitee was held liable to the injured party by virtue of some obligation imposed by law" (Correia v Professional Data Mgt., 259 AD2d 60, 65 [1st Dept i! i 1999 1~ ) • ljLBW and Karo's motion for summary judgment ultimately must be ! denied because in addition to requiring proof of its freedom from negligence, they must prove some negligence that cont~ibuted to Flagler's accident on the part of CEMD, II . . . . d propose d in d emnitor ( Priest 1 y vMonte f iore Me. 'I '1 14 of 15 the c tr. /E ins t ein . . [*[FILED: NEW1YORK COUNTY CLERK 03/36/2018 04: 13 14] INDEX NO. 653912/2013 PM] NYSCEF DOC. NO~ 128 RECEIVED NYSCEF: 03/30/2018 I LBW Enterprises, LLC v CEMD Elevator Corp. Med. I Ctr., 10 AD3d 493, 495 Index No. 653912/13 Page 14 [1st Dept 2004]) . The record evidence on this motion fails to sufficiently establish that CEMD"was negligent. ~Accordingly :I it is !!ORDERED that CEMD Elevator Corp. d/b/a The City Elevator I Co.'s motion (motion sequence 005) is denied; and it is I further I[!ORDERED that LBW Enterprises, LLC and Construction, Inc.'s motion (motion sequence 006 Dated: March 28, 2018 I',j i HON. JENNI 15 of 15 K ;:heung denied.

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