Vucetic v NYU Langone Med. Ctr.

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Vucetic v NYU Langone Med. Ctr. 2020 NY Slip Op 30142(U) January 21, 2020 Supreme Court, New York County Docket Number: 161936/2014 Judge: James E. d'Auguste 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] NEW YORK COUNTY CLERK 01/21/2020 04:09 PM NYSCEF DOC. NO. 228 INDEX NO. 161936/2014 RECEIVED NYSCEF: 01/21/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESE~T: HON. JAMES EDWARD D'AUGUST§ ·JUstlce ---------------------------------------------------X I PART IAS MOTION 55EFM INDEX NO. 161936/2014 MOTION DATE 06/11/2018, 06/22/2018 ANTE VUCETIC, MARIANNA VUCETIC, _Plaintiff, MOTtON SEQ. NO. -vNYU LANGONE MEDICAL CENTER, NYU HOSPITALS CENTER, LENO LEASE (US) CONSTRUCTION LMB INC., - -004-005- - DECISION + ORDER ON MOTION Defendant. -----------------------------------------X NYU HOSPITALS CENTER, LEND LEASE (US) CONSTRUCTION LMB INC. Third-Party Index No. 595374/2015 Plaintiff, -againstORION MECHANICAL SYSTEMS, INC. Defendant. ----------------------------------...:---x -NYU HOSPITALS CENTER, LEND LEASE (US) CONSTRUCTION LMB INC. Second Third-Party Index No. 59529412016 Plaintiff, -againstHORIZON CONTRACTING, LLC Defendant. _-,....------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 004) 120, 121, 122, 123, -- 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 159, 160, 161, 162, _163, 164, 165, 166, 171, 179, 180, 181, 183, 185, 191, 192, 193, 194 ·were read on this motion to/for SUMMARY JUDGMENT The following e-filed documents, listed by NYSCEF document number (Motion 005) 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 167, 168, 169, 170, 172, 175, 176, 177, 178, 184, 186, 195, 196,201,202 were read on this motion to/for _SUMMARY JUDGMENT 16193612014 VUCETIC, ANTE vs. NYU LANGONE MEDICAL CENTER Motion No. 004 005 1 of 6 Page 1 of 6 ' [*FILED: 2] NEW YORK COUNTY CLERK 01/21/2020 04:09 PM NYSCEF DOC. NO. 228 INDEX NO. 161936/2014 RECEIVED NYSCEF: 01/21/2020 Hon. James E. d' Auguste ppon the foregoing documents, motion sequence numbers 004 and 005, which are ! consolidated for disposition, are decided as follows: In this personal injury action brought under the New York Labor Law, plaintiff fell from an unsecured A-frame ladder that broke while it was being used on a construction/renovation project at NYU Langone Medical Center's Tisch Cafeteria. The owner of the property was defendant NYU Langone and the general contractor was defendant ~end Lease. Lend Lease had subcontracted the HVAC· work to third-party defendant Orion,. which in turn, subcontracted a · portion of the HV AC work to second third-party defendant Horizon. Plaintiff was employed at .the time by Horizon. On August 13, 2018, this Court (motion sequence 003) granted summary judgment on the issue of liability under Labor Law § 240(1 ). NYSCEF Doc. No. 173. On October 7, 2019, this Court (motion sequence number 006) severed the issue of plaintiffs' damages in the main action (161936/2014) from the third-party apportionment, indemnification and contribution action (595374/2015) and the second third-party apportionment; indemnification and contribution action (595294/2016). NYSCEF Doc. No. 225. In motion sequence number 004, defend~ts NYU Langone and Lend Lease move for summary judgment seeking an order of contractual indemnification from third-party defendap.t Orion, as well as from second third-party defendant Horizon. 161936/2014 VUCETIC, ANTE vs. NYU LANGON£ MEDICAL CENTER Motion No. 004 005 2 of 6 Page2 of6 [*FILED: 3] NEW YORK COUNTY CLERK 01/21/2020 04:09 PM NYSCEF DOC. NO. 228 INDEX NO. 161936/2014 RECEIVED NYSCEF: 01/21/2020 In motion sequence number 005, second third-party defendant Horizon seeks summary judgment dismissing NYU Langone and Lend Lease's third-party complaint seeking contractual indemnification from Horizon. 1 Horizon~s motion for summary judgment dismissing Orion's claim for contractual indemnification from Horizon is denied. Workers' Compensation.Law§ 11 governs indemnity by subcontractors who are the employers of the injured party. Common law contribution or indemnity is barred except in cases in which the plaintiff has suffered a "grave injury" as defined in that section. However, contractual indemnityis specifically permitted by Workers' Compensation Law § 11 if "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 ofloss suffered" (emphasis added). Despite the specific language in the statute requiring that the contract be entered into prior to the accident or occurrence, an indemnity provision or contract executed after a plaintiff's accident may be applied retroactively where the evidence establishes as a matter of law that the agreement pertaining to the contractor's work was made ''as of' a date prior to the accident, and that the parties intended that it apply to a date prior to the accident. Pena v Choteau Woodmere Corp., 304 AD2d 442 (tst Dep't 2003). Triable issues of fact exist as to whether the indemnity agreement signed by Horizon and Orion, which would otherwise.provide indemnity by Horizon to NYU Langone and Lend Lease, was in effect prior to the time of the accident. For insumce, both Mr. Santos and Mr. Perisatestified 1 Although there are no.notices of cross-motion filed in relation to the instant motions, Orion, at the end of its opposition papers, requests· relief ill the form ofsummary judgment on the issue of contractual indemnification against Horizon (see, NYSCEF Doc. No. 160 at 129). This application is not properly before this Court and, in any event, is denied. 161936/2014 VUCETIC, ANTE vs. NYU LANGONE MEDICAL CENTER Motion No. 004 005 3 of 6 Page 3 of6 [*FILED: 4] NEW YORK COUNTY CLERK 01/21/2020 04:09 PM NYSCEF DOC. NO. 228 INDEX NO. 161936/2014 RECEIVED NYSCEF: 01/21/2020 that it was the practice and procedure of both c0mpanies to enter into agreements for the work that included indemnity language wherein Horizon would cover Orion for claims arising out of the job. Additionally, there is at least one version of the ''Indemnity Agreement and Agreement to Maintain Certain Insurance" that is signed by Orion and Horizon and is "dated" (or backdated} July 3, 2014, which is before the accident. This seems to indicate that even if the agreement was· signed after the accident, there are triable issues of fact that the parties intended that it apply retroactively. Horizon's motion for summary judgment dismissing NYU Langone's and Lend Lease's claim for contractualindemnifieation front Horizon is denied. In addition to the reasons set forth above denying dismissal of Orion's claims for indemnification, which also apply with respect to NYU Langone and Lend Lease, Horizon's additional argument that the Horizon-Orion Indemnification Agreement lacks required specificity to provide indemnification to these non• signatory third parties is unavailing. Although NYU Langone and Lend Lease are not mentioned in the agreement by name, the subject agreement specifies indemnification for the ''Owner" and the ''Contractor" and it seems very unlikely that the parties were not well aware of who those were, particularly in light ofa, purchase order also dated July 3, 2014 identifying the,pr:oject as "NYU Langone Medical Center Tisch Cafeteria Project." The Court finds there are also triable issues of fact as to whether Orion and Horiz<,>n breached any cohtraCtual obligation to obtain certain ·levels of· insurance coverage for NYU . Langone and Lend Lease. Accordingly, Horizon's motion for summary judgment dismissingj . NYU Langone's and Lend Lease's breach of contract claims is denied. Conversely, NYU Langone and Lend Lease's motion for summary judgment on their breach of contract claims against Horizon and Orion are also denied. 161936/2014 WCET(C, ANTE vs. NYU LANGONE MEDICAL CENTER Motion No. 004 005 4 of 6 Page4of6 [*FILED: 5] NEW YORK COUNTY CLERK 01/21/2020 04:09 PM .- NYSCEF DOC. NO. 228 INDEX NO. 161936/2014 RECEIVED NYSCEF: 01/21/2020 NYU Langone's and Lend Lease's motion for summary judgment seeking an order of indemnification from Horizon is denied. Horizon's purported obligation to indemnify NYU Langone and Lend Lease is premised upon the Orion-Horizon Indemnification Agreement. As stated herein, there are triable issues of fact as to whether this agreement was in effect prior to the r date of the accident, or that the parties intended for the agreement to retroactively over the date of the agreement to the extent that it was entered into after that date. NYU Langone's and Lend Lease's motion for summary judgment seeking an order of indemnification from Orion is granted. A party is entitled to full contractual indemnification wherein the party can demonstrate that full contractual indemnification was the intention implied from the language and the purpose of the entire agreement and the surrounding facts and circumstances. Vrzewinskt v. Atlantic Scaffold &Ladder Co. et al., 70 N.Y.2d 774 (1987). The Court of Appeals has further held that such indemnification is owed wherein there. is no evidence of any fault or wrongdoing on the part of the party seeking to be indemnified. Brown v. Two Exchange Plaza Partners, 76 N.Y.2d 172 (1990). NYU and Lend Lease's claim for indemnification is based on the Lend Lease..Orion Subcontract (NYSCEF Doc. No. 153), which contains a clear and unambiguous intent for Ori()ll to indemnify NYU Langone and Lend Lease to the fullest extent permissible by law. It is not disputed that the accident involved an Orion ladder and the method and means of the work was supervised by Horizon supervisors with· an Orion supervisor also present at the site at the time. Nobody from NYU Langone or Lend Lease supervised or controlled the work plaintiff Ante Vucetic was performing at the time ofhis accident and admitted he did not even see anyone from these defendants on the jobsite. Thus, there are no triable issues of fact of any fault or wrongdoing on the part of NYU Langone or Lend Lease, and should these defendants be found liable, such \ 161936/2014 VUCETIC, ANTE vs. NYU LANGONE MEDICAL CENTER Motion No. 004 005 5 of 6 Page&of6 [*FILED: 6] NEW YORK COUNTY CLERK 01/21/2020 04:09 PM NYSCEF DOC. NO. 228 INDEX NO. 161936/2014 RECEIVED NYSCEF: 01/21/2020 liability would be statutory or vicarious arising from the work subcontracted to Orion, a portion of which was sub-subcontracted to Horizon.. Under such circumstances, NYU Langone and Lend Lease are entitled to contractual indemnification from Orion. Colozzo v. National Center i Foundation, 30 A.D.3d 251 (1st Dep't 2006) (a party is entitled to full indemnification if the party seeking indemnification establishes that the plaintiffs injuries are not attributable to negligence on its part and that its liability was vicario~ and purely statutory). Further, unlike Horizon, Orion was not plaintiffs employer and, as a reslllt, the restrictions imposed by WCL § 11 regarding retr-0activity are not applicable with 1'eSpect to this third-party defendant. Accordingly, itis hereby I ORDERED that NYU Langone's and Lend Lease's motion for summary judgment seeking an order of contractual indemnification from third-party defendant Orion is granted; and it is further ORDERED that NYU Langone's.and Lend Lease's motion for summaryjudgm.ent seeking - an order of con~actual indemnification from second third;.party defendant Horizon is denied; and it is further ORDERED that second third-party defendant Horizon's motion for summary judgment sedcing dismissal ofNYU Langone's and Lend .Lease~s second third-party complaint seeking contractual indemnification from Horizon is denied. This constitutes the decision and order of this Court. 1/21/2020 DATI: CHECK ONE: ~ . . APPLICATION: CHECK IF APPROPRIATE: ' C~ DISPOSED GRAN~D D oeueo GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSf&RIREASSIGN FIDUCIARY APPOINTMENT 161936/2014 VUCETIC, ANTE vs. NVU LAN~E.MEOICAL CENTER Motion No. 004 005 · 6 of 6 0·oTHER o.REFERENCE Page6 of6 (

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