Henaghan v Storm King Group, Inc.

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Henaghan v Storm King Group, Inc. 2019 NY Slip Op 34545(U) January 22, 2019 Supreme Court, Orange County Docket Number: Index No. EF005406-2016 Judge: Catherine M. Bartlett 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. INDEX NO. EF005406-2016 FILED: ORANGE COUNTY CLERK 01/22/2019 09:53 AM NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 01/22/2019 SUPREME COURT-STATE OF NEW YORK IAS PART-ORANGE COUNTY Present: HON. CATHERINE M. BARTLETT, A.J.S.C. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE -------------------------------------------------x LINDA HENAGHAN, Plaintiff, -against- STORM KING GROUP, INC., HUDSON BUILDERS GROUP and HEALTH QUEST MEDICAL PRACTICE, P.C., Defendants. To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of upon all parties. Index No. EF005406-2016 ----------------------------------------------------------x HUI)SON BUILDERS GROUP, Motion Date; November 30, 2018 Third-Party Plaintiff, -against- Third-Party Index No. EF0OS406-2016 HEALTH QUEST MEDICAL PRACTICE, P.C., Third-Party Defendant. ---------------------------------"".--------------------------x HUDSON BUILDERS GROUP, Second Third-Party Plaintiff, -against- Second Third-Party Index No. EF005406-2016 HEALTII QUEST SYSTEMS, INC., Second Third-Party Defendant. --------------------------------------------------------------x The following papers numbered I to 9 were read on the parties' motions for summary judgment: Notice of Motion (Hudson) - Affirmation/ Exhibits ..........................•..... 1-2 Affirmation in Opposition I Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I Filed [* 1]in Orange County 01/22/2019 09:53:13 AM $0.00 1Bk:of 7 5121 Pg: 114 Index:# EF005406-2016 Clerk: SW FILED: ORANGE COUNTY CLERK 01/22/2019 09:53 AM NYSCEF DOC. NO. 108 INDEX NO. EF005406-2016 RECEIVED NYSCEF: 01/22/2019 Reply Affirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ 4 Notice of Motion (Health Quest) - Affirmation / Exhibits - Affidavit I Exhibit . . . . . . . . . . . 5-7 Affirmation in Opposition I Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... ... 8 Reply Affirmation ... , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... 9 Upon the foregoing papers it is ORDERED that the motions are disposed of as follows : This is an action to recover for personal injuries sustained by plaintiff Linda Henagh an in a fall from a "ramp" on premises owned by her employer, Second Third-Party Defend ant Health Quest Systems, Inc. ("HQ Systems"). The procedural posture of this case is as follows : (1) Plaintiff's action as against defendant Storm King Group, Inc. has been discontinued. (2) Defendant/Third-Party Defendant Health Quest Medical Practice, P.C. ("HQ Medical") moves for summary judgment dismissing all claims against it on the ground that it had no relationship to the premises/ structures at issue in this case. {3) Defendant / Third-Party Plaintiff Hudson Builders Group ("Hudson"), which constructed the "ramp" at issue here pursuant to contract with HQ Systems, moves for summary judgment dismissing the Complaint on the ground that Plaintiff is unable to identify the dangerous or defective condition that caused her fall. (4) Second Third•Party Defendant HQ Systems moves for summary judgment dismissing Hudson's third-party complaint for indemnification and contribution on the grounds that those claims are barred by the exclusive remedy provisions of the Workers Compensation Law. 2 [* 2] 2 of 7 INDEX NO. EF005406-2016 FILED: ORANGE COUNTY CLERK 01/22/2019 09:53 AM NYSCEF DOC. NO. 108 A. RECEIVED NYSCEF: 01/22/2019 HQ Medical Is Entitled To Summary Judgment HQ Medical demonstrated by admissible evidence that it did not and does not own, lease, manage or otherwise control the property, land, or structures on the premises where Plainti ffs accident occurred, and did not contract with, retain or otherwise enter into any agreement with Hudson to perform work on the premises. In short, it established prima facie that it had no relationship to the premises in question or to Plainti ffs injury and is therefore entitled to summary judgment. Plaintiff does not oppose HQ Medical's motion, and Hudson has adduced no evidenc e in opposition thereto. Hudso n's contention that the motion is premature becaus e HQ Medical's deposition has not been taken is without merit, as Hudson failed to timely pursue the deposition in accordance with this Court's orders, in consequence of which it has been deemed waived. Therefore, HQ Medical's motion for summary judgment is granted. B. Hudson Failed To Demonstrate Prima Facie Entitlement To Summary Judgm ent "The proponent of a summary judgment motion must make a prirna facie showin g of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York University Medic~ / Center, 64 NY2d 851, 853 (1985). The movan t's failure to meet this burden of proof "requires denial of the motion, regardless of the sufficiency of the opposing papers." Id. Plaintiff's accident occurred during lunchtime on the premises of Vassar Brothe rs Medical Center. Plaintiff procured her lunch in a cafeteria inside the building, and carried her lunch tray outside through a set of double doors, across a short landing and down an exterior staircase to a patio area with picnic tables. The patio, staircase and landing were aJl in a rather 3 [* 3] 3 of 7 INDEX NO. EF005406-2016 FILED: ORANGE COUNTY CLERK 01/22/2019 09:53 AM NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 01/22/2019 dilapidated condition. Pendin g renovation, HQ Systems retained Hudson to perform a temporary fix involving the installation oflumb er treads atop the steps and lumber walkw ay or "ramp" atop the landing. When Plainti ff finished eating, she had to go back inside to dispose of her tray. She ascended the steps, and fell when she reached the walkway or "ramp" on the landing. Hudson claims entitlement to summary judgme nt on the purpor ted ground that is unable to identify the dangerous or defective condition that caused her fall, Plainti ff and testified only that she fell because she "lost her footing." However, when confronted with the accident report she flied on the date of the accident, Plainti ff further testified in accordance with her report she fell because she stepped off the right side of the "ramp" , which was raised several above the surface of the landing, and that she did not see the edge of the '"ramp. that inches " Contrary to Hudson• s assertion, then, Plainti ff did identify the condition that caused her fell. Hudson on its motion does not address the question whethe r the "ramp" which it constructed gave rise to a dangerous or defective condition. Plainti ff in her Verifie d Bill of Particulars asserted inter alia that the ..ramp" created conditions in the nature of a "trap." In Hutchinson v. Sheridan Hill House Corp.• 26 NY3d 66 (2015), the Court of Appeal s identified four factors that may be indicative of a "trap": (I) a rough, irregular surface ; (2) the presence of other defects in the vicinity; (3) poor lighting; and (4) a location, such as a premises entrance / exit, where pedestrians are naturally distracted from looking downw ard at their feet. Id, 26 NY3d at 78. Arguably, three of those four factors are present here. Photographs show that the "ramp'~ was constructed of a series of parallel boards with spaces left betwee n them, thereby creating an irregular surface. There were other defects in the vicinity; indeed, the entire area was in a dilapidated conditi on. The •'ramp" was located at an 4 [* 4] 4 of 7 INDEX NO. EF005406-2016 FILED: ORANGE COUNTY CLERK 01/22/2019 09:53 AM NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 01/22/2019 entrance / exit where employees would be carrying lunch trays in and out. and up and down the adjacent steps, and thus naturally distracted from looking downward at their feet. In addition, the right edge of the "ramp" from which Plaintiff fell was located just inches outside frame, and approximately one foot inside the metal handrail on the right side the door of the staircase, and thus in an area where pedestrians would foreseeably be walking. Finally, the evidenc e shows that yellow strips marking the edges of the "ramp" on either side were not present on the date of the accident. Hudson's failure, in the face of such circumstances, to address the question whethe r the "ramp" gave rise to a dangerous or defective condition which caused or contributed to Plaintiff's accident leads ineluctably to the conclusion that it has failed to demonstrate primaf acie entitlement to summary judgment. Consequently, Hudson's motion for summary judgme nt dismissing Plainti frs complaint must be denied. C. HQ Systems Is Entitled To Summ ary Judgment HQ Systems demonstrated by admissible evidence that Plaintiff is its employee, that she applied for and received Workers Compensation benefits from HQ Systems in connec tion with this accident, that she has not sustained a "grave injury" within the meaning of Worke rs Compensation Law §11, that it did not expressly agree to indemnification or contrib ution, and consequently, that Hudson's third-party claims are barred by the exclusive remedy provisi ons the Workers Compensation Law. Hudson, in opposition, asserts that there is a triable issue of fact whether HQ System s is liable for contractual indemnification and/or contribution. Hudson relies on Worke rs Compensation Law § 11, which provid es in pertinent part that the Workers Compe nsation bar 5 [* 5] 5 of 7 of FILED: ORANGE COUNTY CLERK 01/22/2019 09:53 AM NYSCEF DOC. NO. 108 INDEX NO. EF005406-2016 RECEIVED NYSCEF: 01/22/2019 does not apply to: ... a claim or cause of action for contribution or indemnification based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered. See, Workers Compensation Law §11 (emphasis added). Hudson points in this regard to a sentence in its principal's email conveying the "Stair Treads - Walkway Proposal", to which HQ Systems agreed: "This is a temporary fix and HBG will not be liable for any flaw / structural defects because of pre-existing conditions." For two reasons, Hudson's contention is unavailing. First, Section 11 of the Workers Compensation Law requires an express agreement whereby the employer undertook to pi'ovide contribution and/or indemnification for the type of loss suffered. No such agreement may be supplied by implication. See, _Tonking v. Port Authority, 3 NY3d 486 (2004); Nicholson v. Sabey Data Ctr. Props., 160 AD3d 587 (1 st Dept. 2018). The single sentence upon which Hudson relies does not contain an express agreement for contribution or indemnification, much less contribution or indemnification for third-party personal injury claims. Second, even if the language of the Proposal were deemed to give rise to an ambiguity, it would have to be resolved against Hudson based on the testimony of its principal, Dan Spiegel. Mr. Spiegel, the author of the emailed Proposal, testified that in referencing "flaw/ structural defects because of pre-existing conditions", his concern was for the "stability of the substrate", i.e., that "ifl attached lumber on top of that and something below it gave way, whatever I put on it was not going to hold through ." (See, Spiegel Dep. Tr., pp. 41, 62) Neither the defect at issue 6 [* 6] 6 of 7 FILED: ORANGE COUNTY CLERK 01/22/2019 09:53 AM NYSCEF DOC. NO. 108 INDEX NO. EF005406-2016 RECEIVED NYSCEF: 01/22/2019 here nor the Plaintiffs accident and injury had anything to do with the stability of the substrate. The "ramp" did not move or give way because the substrate could not hold it; Plaintiff simply stepped over the edge. Hence, even on Hudson's understanding, the parties' agreement would not give rise to an obligation on the part of HQ Systems to indemnify Hudson or provide contribution for Plaintiff's loss. Therefore, HQ Systems' motion for summary judgment dismissing Hudson's third-party complaint against it is granted. It is therefore ORDERED, that the motion of Defendant/ Third-Party Defendant Health Quest Medical Practice, P.C. for summary judgment is granted, and Plaintiffs claims as well as Hudson's Third-Party Complaint against it are hereby dismissed, .and it is further . ORDERED, that the motion of Defendant Hudson Builders Group for summary judgment is denied, and it is further ORDERED, that the motion of Second Third-Party Defendant Health Quest Systems, Inc. for summary judgment is granted, and Hudson's Second Third-Party Complaint against it is hereby dismissed. The foregoing constitutes the decision and order of the Court. ..JJ. Dated: January 20 I 9 Goshen, New York · EN TE R HON. C. M. BARTLffi JUDGE NY STATE COURT OF CLAIMS ACTING SUPREME COURT JUSTICE 7 [* 7] 7 of 7

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