Passalacqua v AVR Realty Co., LLC

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Passalacqua v AVR Realty Co., LLC 2020 NY Slip Op 34682(U) September 28, 2020 Supreme Court, Westchester County Docket Number: Index No. 53984/2018 Judge: Charles D. Wood 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 09/28/2020 03:21 PM NYSCEF DOC. NO. 261 INDEX NO. 53984/2018 RECEIVED NYSCEF: 09/28/2020 commence the statutory time period for appeals appeals To commence ofrighl (CPLR SS 55I3[a]), you are are advised advised to 10 serve serve as of right (CPLR 13(a]), you entry, upon all parties. a copy copy of of this this order, with notice nolice of ofenrry. panies. SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY ------------------------------------------------------------------------)( ------------------------------------------------------------------------X ANTHONY ANTHONY PASSALACQUA PASSALACQUA and VIRGINIA VIRGINIA PASSALACQUA, PASSALACQUA, DECISION & ORDER ORDER DECISION Index No.: 53984/2018 Index No.: 53984/2018 Plaintiffs, Plaintiffs, -against-against- Sequence Nos.l ,2,3 Sequence Nos.1,2,3 AVR REALTY COMPANY, COMPANY, LLC, LLC, SO SOLAL REALTY A VR REALTY LAL REAL TY LIMITED PARTNERSHIP, PARTNERSHIP, SCHIMENTI SCHIMENTI CONSTRUCTION CONSTRUCTION LIMITED COMPANY, LLC, LLC, DICK'S DICK'S SPORTING SPORTING GOODS, GOODS, INC. INC. and COMPANY, BRANSTETTER CONSTRUCTION, CONSTRUCTION, INC., INC., BRANSTETTER Defendants. Defendants. -------------------------------------------------------------------------)( -------------------------------------------------------------------------X SOLAL REALTY LIMITED PARTNERSHIP, PARTNERSHIP, and SO LAL REAL TY LIMITED SCHIMENTI CONSTRUCTION CONSTRUCTION COMP COMPANY, LLC, SCHIMENTI ANY, LLC, Third-Party Plaintiffs, Plaintiffs, Third-Party - against against- DAME CONTRACTING, CONTRACTING, INC., INC., DAME Third-Party Defendant. Defendant. Third-Party --------------------------------------------------------------------------)( --------------------------------------------------------------------------X WOOD,J.J. WOOD, New York State State Courts Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Documents Documents Numbers Numbers 121-258 121-258 New York connection with: with: were read in connection fum].-motion by Third-Party Third-Party Defendant, Defendant, Dame Dame Contracting, Contracting, Inc. for summary summary judgment, ~-motion judgment, dismissing the third third party party plaintiffs plaintiff s Complaint. Complaint. dismissing motion by defendant defendant Branstetter Branstetter Construction Construction for summary summary judgment, dismissing the Seq 2- motion judgment, dismissing Law SS 240 and 241(6) 241(6) claims claims of of plaintiff, plaintiff, against Branstetter (ii.) (ii.) dismissing dismissing plaintiff plaintiffs s Labor Law§§ against Branstetter Labor Law §200 S200 and common common law negligence negligence claims claims as against against Branstetter Branstetter dismissing dismissing all Labor cross-claims asserted asserted by Solal Solal Realty, Realty, Schimenti, Schimenti, Dick' Dick'ss and Dame. Dame. cross-claims 1 1 of 13 [*FILED: 2] WESTCHESTER COUNTY CLERK 09/28/2020 03:21 PM NYSCEF DOC. NO. 261 INDEX NO. 53984/2018 RECEIVED NYSCEF: 09/28/2020 complaint including Seq 3 -Solal Realty and motion dismissing plaintiffs' complaint including the dismissing the plaintiffs' Schimenti motion and Schimenti -Solal Realty well as all claims, negligence Labor Law§§ Law ~~ 240(1), common-law negligence claims, as well 241-a and 200 and common-law 241(6), 241-a 240(1), 241(6), Labor common-law Schimenti for common-law Realty and Schimenti cross-claims Solal Realty against Solal counter-claims as against cross-claims and counter-claims defendant Dick' against as cross-claim s indemnification and contribution; (2) on Solal Realty's cross-claim against defendant Dick'ss Realty' on Solal indemnification and contribution; of the enforcement of the enforcement and the claim and indemnification, defense defense of of the plaintiffs plaintiff's claim contractual indemnification, for contractual indemnification, contractual of order conditional indemnity agreement, or, in the alternative, a conditional order of contractual indemnification, alternative, indemnity agreement, or, against Dame claim as against third-party claim Schimenti' s third-party and dismissal Dame for cross-claims;(3) on Schimenti's Dick's cross-claims;(3) of Dick's dismissal of claim plaintiff's of defense the in contractual indemnification, including expenses, incurred defense of the plaintiffs claim incurred expenses, including contractual indemnification, of order of conditional order alternative, a conditional the alternative, and the enforcement enforcement of indemnity agreement, agreement, or, in the the indemnity of the contractual indemnification. contractual indemnification. damages from recover damages action to recover this action Plaintiff worker, Dame, brings brings this of Dame, employee of worker, an employee Plaintiff and §§§200, 240(1) Law ~~~200, Labor Law theories, and Labor defendants, pursuant to common 240(1) and negligence theories, common law negligence defendants, pursuant the during the 2016, during July 6, 2016, occurred on July have occurred 241(6), that is alleged alleged to have accident that trip-and-fall accident 241(6), from a trip-and-fall retail adjoining retail the adjoining Stream store renovation of a Dick's store and the build-out store in the Field & Stream of a Field build-out of Dick's store renovation of Road in Whitman Road Walt Whitman space single story story shopping center located located at 870 Walt shopping center Mall, a single Melville Mall, space at the Melville "Project"). Melville, New York (the "Project"). New York Melville, follows: decided as follows: motions are decided NOW, foregoing, the motions the foregoing, of the light of NOW, in light prima make a prima must make motion must judgment motion settled that proponent of of a summary summary judgment "a proponent that "a well settled It is well evidence to sufficient evidence of law, law, tendering tendering sufficient matter of judgment as a matter entitlement to judgment of entitlement showing of facie showing NY2d 320, Hosp .• 68 NY2d (Alvarez v Prospect demonstrate issues of Prospect Hosp., 320, fact" (Alvarez of fact" material issues of any material absence of demonstrate the absence 686-687 AD3d 684, Bonte, 37 AD3d 324 [1986]; [1986]; see Orange Orange County-Poughkee County-Poughkeepsie 684, 686-687 Partnership v Bonte, psie Ltd. Partnership movant has Once the Dept 2007]). [2d Dept Rea v Gallagher, Gallagher, 31 AD3d AD3d 731 [2d Dept 2007]). Once the movant 2007]; see also Rea Dept 2007]; of fact issues of triable issues of triable existence of present the existence met this threshold threshold burden, opposing party must present party must burden, the opposing AD3d 1062 Nelson, 68 AD3d Khan v Nelson, also Khan (see Zuckerman 557, 562 [1980] [1980];; see also NY2d 557, York, 49 NY2d New York, Zuckerman v New motion for defeat a motion suffice to defeat not suffice will not [2d Dept Dept 2009]). Conclusory, unsubstantiated assertions will unsubstantiated assertions 2009]). Conclusory, Dept 1987]). summary Bank of New York, N.A. v Sokol, Sokol, 128 AD2d AD2d 492 [2d Dept 1987]). York, .N.A. of New (Barclays Bank judgment (Barclays summary judgment 2 2 of 13 [*FILED: 3] WESTCHESTER COUNTY CLERK 09/28/2020 03:21 PM NYSCEF DOC. NO. 261 INDEX NO. 53984/2018 RECEIVED NYSCEF: 09/28/2020 basis of the basis A party opposing a motion summary judgment of deposition deposition judgment may do so on the motion for summary party opposing affidavit, and expert's affidavit, testimony admissible forms forms of of evidence, including an expert's evidence, including other admissible well as other testimony as well motion deciding a motion eyewitness testimony (Marconi v Reilly, Reilly, 254 AD2d Dept 1998]). 1998]). In deciding AD2d 463 [2d Dept testimony (Marconi eyewitness most light most the light "in the presented "in summary judgment, court is required required to view evidence presented view the evidence judgment, the court for summary inference from the favorable opposing the motion motion and to draw every reasonable reasonable inference draw every party opposing favorable to the party (Yelder opponent to the motion" of the opponent pleadings proof submitted parties in favor motion" (Yelder favor of submitted by the parties the proof pleadings and the AD2d Corp., 305 AD2d Realty Corp., Tedlen Realty v Walters, AD3d 762, Nicklas v Tedlen 2009]; see Nicklas Dept 2009]; 767 [2d Dept 762, 767 Walters, 64 AD3d the evidence presented 385,386 must accept accept as true the evidence presented by the court must The court 2003]). The Dept 2003]). 385, 386 [2d Dept "even arguably nonmoving and must must deny arguably any doubt doubt as to the there is "even if there motion if deny the motion party and nonmoving party Baker v 2005]); Baker Dept 2005]); AD3d 493 [2d Dept existence of of a triable (Kolivas v Kirchoff, Kirchoff, 14 AD3d issue" (Kolivas triable issue" existence drastic judgment is a drastic Summary judgment Briarcliff School Dist., 652,661-662 [2d Dept 1994]). Summary Dept 1994]). AD2d 652,661-662 Dist., 205 AD2d Briarcliff School triable issue of a triable existence of remedy should not granted where doubt as to existence issue there is any doubt where there not be granted remedy and should (Alvarez v Prospect Prospect Hospital, Hospital, 68 NY2d [1986]). NY2d 320, 324 [1986]). (Alvarez Dick's premises to Dick's. Solal Realty Realty owns Melville Mall, Mall, and it leased leased the subject subject premises Dick's. Dick's owns the Melville Sola! retained Schimenti then retained general contractor then retained project. Schimenti contractor on the project. the general Schimenti, as the retained Schimenti, Branstetter retained Branstetter also retained Dick's also plaintiffs employer, contractor. Dick's carpentry contractor. drywall an~ carpentry Dame, a drywall employer, Dame, plaintiff's stores. to install install the pre-fabricated pre-fabricated millwork millwork in both both stores. of the shopping back of the back The happened outside Dick's store store at the shopping of the Dick's outside of accident happened alleged accident The alleged that he claims that parking lot. Plaintiff center, Dick's, and the asphalt Plaintiff claims asphalt parking dock for the Dick's, loading dock near the loading center, near when he Dick's when of the Dick's rear of performing drywall finishing work stockroom in the rear work in the stockroom drywall finishing was performing Stream Field & Stream stored in the Field decided that needed to obtain obtain certain certain tools being stored materials being tools and materials that he needed decided area, Stream area, Field & Stream the Field part of of the project. project. He exited exited a rear door of of Dick's Dick's and walked outside to the walked outside rear door part 3 3 of 13 [*FILED: 4] WESTCHESTER COUNTY CLERK 09/28/2020 03:21 PM NYSCEF DOC. NO. 261 INDEX NO. 53984/2018 RECEIVED NYSCEF: 09/28/2020 walking walking. back back to the stockroom stockroom area, taking taking the same same route route he had had taken taken to get to the Field Field & Steam area, he claims claims that that he tripped tripped and fell over over plastic that was was hanging hanging off off of of a four-by-four four-by-four Steam plastic that wooden pallet, onto the ground ground which which had glass glass on it. wooden pallet, and onto John Buonocore, Buonocore, an assistant assistant superintendent superintendent of of Salal Realty/Schimenti, Realty/Schimenti, who who was involved involved John with the Walt Walt Whitman Whitman project, project, testified: testified: there any other other way way for the workers workers who would would go from from the Dick's Dick's Sporting Sporting Goods Goods store store Q. Was there Field & Stream Stream store store and and back back to get to that location location other other than than pass area where where this to the Field pass by the area pallet wrap was? was? pallet and this plastic plastic wrap There was no other other way. (NYSCEF# A. There (NYSCEF# 217, pg. 67) Dennis Murray, Murray, store store manager manager for Dick's, Dick's, Rob Cosentino, Cosentino, a foreman foreman for Dame Dame Dennis Contracting, Timothy Timothy Branstetter, Branstetter, of of Branstetter, Branstetter, each testified testified to conflicting conflicting accounts accounts as to the Contracting, source of the pallet and plastic alleged to have have caused caused plaintiff slip and fall. Marc Marc source of pallet and plastic that is alleged plaintiff to slip Losquadro, the Schimenti Schimenti supervisor, supervisor, attested attested that Schimenti Schimenti would would instruct instruct its laborers laborers to clean clean Losquadro, construction debris, debris, which which could could include include pallets pallets and plastic plastic wrapping. wrapping. Based Based upon upon this this up the construction record, and taking taking into consideration consideration the testimonies testimonies of of the parties, of the subject record, parties, the source source of subject pallet plastic remain remain a mystery. mystery. pallet and plastic Turning to Labor Labor Law Law §240(1), S240(l), commonly commonly known known as the scaffold scaffold law, law, creates creates a duty that that Turning is nondelegable, nondelegable, and an owner owner or general general contractor breaches that that duty duty may be held held liable liable contractor who breaches for damages damages regardless regardless of of whether whether they actually exercised any supervision supervision or control control over over the actually exercised work performed (Ross v Curtis-Palmer Curtis-Palmer Hydro-Elec. HydroElec. Co., 81 81 NY2d 494 (1993]). [1993]). This This section section work performed (Ross NY2d 494 c ( requires owner owner and contractors contractors to provide provide workers workers with with appropriate safety devices devices to protect requires appropriate safety protect against gravity gravity related related accidents accidents such falling from heights heights or being being struck struck by an improperly improperly against such as falling hoisted or secured secured object object (Novak iliovak v Del Savio,, Savio" 64 AD3d AD3d 636 [2d Dept Dept 2009]). 2009]). To demonstrate demonstrate hoisted 4 4 of 13 [*FILED: 5] WESTCHESTER COUNTY CLERK 09/28/2020 03:21 PM NYSCEF DOC. NO. 261 INDEX NO. 53984/2018 RECEIVED NYSCEF: 09/28/2020 entitlement judgment on an alleged entitlement t0 to summary summary judgment alleged violation violation of of Labor Labor Law Law §240(1), ~240(1), a plaintiff plaintiff must must establish that that there there was a violation violation of of the statute, statute, and that that it was the proximate proximate cause cause of of his or her establish injuries (Blake v Neighborhood Neighborhood Hous. Hous. Servs. ofN. ofN. Y. City. City, 1 NY3d NY3d 280, 280, 289 [2003]). [2003]). injuries (Blake record shows shows that that plaintiff plaintiff purported purported stepped stepped on plastic plastic wrap wrap that that was located located The record outside ground level, outside on ground level, not due to the direct direct application application of of gravity gravity - Labor Labor Law Law §240(1 ~240(1)) is not implicated because because there there is no elevation elevation differential differential requiring requiring a safety safety device device (Zastenchik (Zastenchik v implicated Knollwood Country Country Club, Club, 101 101 AD3d AD3d 861 861,, 863-64 863-64 [2d Dept Dept 2012]). 2012]). Knollwood Likewise, Labor Labor Law Law §241-a ~241-a is also manifestly inapplicable to the facts of of this case Likewise, manifestly inapplicable because the plaintiff plaintiff was not working working in an elevator, elevator, shaftway, shaftway, hatchway hatchway or stairwell (Desena v because stairwell (Desena North Shore Hebrew Hebrew Academy, Academy, 119 AD3d AD3d 631 631,, 635 [2d Dept Dept 2014]). Accordingly, the 2014]). Accordingly, North Shore plaintiffs Labor Labor Law Law §241-a ~241-a claim claim is dismissed dismissed as a matter matter oflaw. of law. plaintiff's Turning next next to Labor Labor Law Law §241(6), ~241(6), which which was enacted enacted to provide provide workers workers engaged Turning engaged in construction, demolition, demolition, and excavation excavation work work with with reasonable reasonable and adequate adequate safety safety protections, protections, construction, places a nondelegable nondelegable duty upon upon owners owners and general general contractors, contractors, and their their agents comply with with places agents to comply specific safely safely rules rules set forth in the Industrial Industrial Code Code ("the ("the Code") Ross v Curtis Curtis Palmer Palmer the specific Code") ( Ross Hydro-Elec, Co.,81 NY2d NY2d 494 [1993]). [1993]). Liability Liability may be imposed imposed under under Labor Labor Law Law §241(6) ~241(6) even even Hydro-Elec, where the owner owner or contractor contractor did not supervise supervise or control control the work work site. The The causes of ac~ion ac,ion where causes of must be based upon upon violations violations of of specific specific codes, codes, rules, rules, or regulations regulations applicable applicable to the must circumstances of of the accident accident (Reyes (Reyes v Arco Wentworth Wentworth Mgt. Mgt. Corp., Corp., 83 AD3d AD3d 47,53 Dept 47, 53 [2d Dept circumstances 2011]). To state a cause cause of of action action pursuant pursuant to §241(6), ~241(6), a plaintiff plaintiff must must allege allege that that the property property 2011]). owners violated violated a regulation regulation that that sets forth a specific specific standard standard of of conduct conduct and not not simply simply a owners recitation of of common-law common-law safety safety principles principles (Gonzalez (Gonzalez v Perkan Perkan Concrete Concrete Corp., Corp., 110 AD3d AD3d 955 recitation 5 5 of 13 [*FILED: 6] WESTCHESTER COUNTY CLERK 09/28/2020 03:21 PM NYSCEF DOC. NO. 261 INDEX NO. 53984/2018 RECEIVED NYSCEF: 09/28/2020 2013]). If If proven, proven, the general general contractor contractor (or owner, owner, as the case may may be) is vicariously vicariously [2d Dept 2013]). the case liable liable without without regard regard to his or her fault (Monroe (Monroe v City ofNew of New York, York, 67 A.D.2d A.D.2d 89, 104 [2d Dept 1979]). Therefore, Therefore, this issue must must go to the jury determination as to whether whether any Dept jury for determination negligence of of some some party party to, to, or participant participant in, the construction construction project project caused caused plaintiffs plaintiffs injury, injury, negligence if proven, proven, the general general contractor contractor (or owner, owner, as the case vicariously liable liable without without and if case may be) is vicariously regard to his or her fault. "Contributory "Contributory and comparative comparative negligence negligence are valid valid defenses regard defenses to a section S241(6) claim, claim, moreover, moreover, breach breach of imposed by a rule in the Code merely some some of a duty imposed Code is merely section §241(6) evidence for the fact finder finder to consider consider on the question question of of defendant's defendant's negligence" negligence" (Misicki (Misicki v evidence Caradonna 12 NY3d 511,, 515(2009]). 515[2009]). Caradonna NY3d 511 Realty argues argues that that in the absence absence of of any competent competent evidence evidence whether whether the subject Solal Realty subject pallet originated originated from construction construction work work as opposed opposed to Dick's Dick's retail retail operations, operations, it is impossible pallet impossible prove the applicability applicability of of the cited cited regulation regulation to the facts let alone alone that that a violation violation of of the to prove regulation was a proximate proximate cause of the injuries. injuries. regulation cause of Plaintiff claims claims that that the issue issue of of the violation violation ofNYCRR ofNYCRR 23-l.7(e)(l) 23-1.7(e)(1) and (e)(2) (e)(2) Plaintiff precludes summary summary judgment being granted granted to Solal and Schimenti. Schimenti. precludes judgment being Initially, the court court finds that Industrial Industrial Code Provision Provision 23-1. 23-1. 7(b 7(b)(1) inapplicable. This )(1) is inapplicable. This Initially, provision concerns concerns hazardous hazardous openings, openings, such as holes. holes. Plaintiff Plaintiff does does not not allege allege that that he fell down down provision tripped on a wooden wooden pallet/shrink pallet/shrink wrap. Additionally, Additionally, except except for Industrial Industrial a hole; he says he tripped 7(e)( other Industrial Industrial Code Code provisions provisions cited cited by plaintiff plaintiff either either are Code Rule 23-1. 7( e)( 11)(2), )(2), the other inapplicable to the facts, facts, or have have been been abandoned. inapplicable abandoned. The remaining remaining Industrial Industrial Code Code Rules Rules 23-l.7(e) 23-1.7(e) (1) and (2), requires requires that that all passageways passageways and working working areas areas be kept kept from accumulation accumulation of of dirt, dirt, debris, debris, scattered scattered tools, tools, and other other materials. materials. 6 6 of 13 [*FILED: 7] WESTCHESTER COUNTY CLERK 09/28/2020 03:21 PM NYSCEF DOC. NO. 261 INDEX NO. 53984/2018 RECEIVED NYSCEF: 09/28/2020 First Department Department found found that that "integral-to-the-work" "integral-to-the-work" defense, defense, applies applies to Labor Labor Law Law The First rule requiring areas in which which construction construction is being being performed reasonable and adequate adequate requiring areas performed to provide provide reasonable protection and safety safety to persons persons employed employed therein, therein, applies applies to Industrial Industrial Code Code rule requiring requiring all protection passageways to be kept kept free from obstructions obstructions which which could could cause cause tripping tripping (Labor (Labor Law Law §241(6); 9241(6); passageways N.Y. Comp. Compo Codes Codes R. & Regs. Regs. tit. 12, 12,9§ 23-l.7(e)(l); 23-1.7(e)(1); Krzyzanowski Krzyzanowski v City City ofNew of New York, York, 179 AD3d 47 [1 [151st Dept Dept 2020]). 2020]). AD3d Plaintiff claims claims that that he was on his way from one portion portion of of the work work site to another another to Plaintiff look for tools tools and determine determine if if they have have enough enough materials materials for the work; work; and and to do so, he needed needed look navigate the subject subject area area that that was used by workers, workers, which which was fenced fenced in, closed closed off off by two to navigate dumpsters and a pole, pole, in effect effect making making it a passageway, passageway, constituting constituting a work work area area covered covered by dumpsters NYCRR 23-l.7(e)(2). 23-1.7(e)(2). NYCRR Based upon moving defendants defendants Branstetter, Branstetter, Solal Solal Realty Realty and and Schimenti Schimenti failed failed Based upon this this record, record, moving to establish establish their entitlement to judgment of law law on the issue issue of of liability liability their prima prima facie entitlement judgment as a matter matter of cause of of action action alleging alleging a violation violation of of Labor Labor Law Law § 9 241 241(6). These defendants defendants failed failed to on the cause (6). These show that there there was not a violation violation of of 12 NYCRR 23-1. .7( 7(e)(2), that such such violation violation was a NYCRR 23-1 e)(2), and that show proximate cause of of plaintiffs plaintiff s injuries. injuries. Contrary Contrary to defendants' defendants' contentions, contentions, questions questions of of fact proximate cause exists whether whether there there was was construction construction work work being being performed performed in the vicinity vicinity of of plaintiffs alleged exists plaintiffs alleged fall, whether the subject subject incident incident occurred occurred at a "passageway" "passageway" or ~efined c;lefinedwalkway used to fall, whether walkway used traverse between between discrete discrete areas areas indoors indoors and, accordingly, accordingly, there there is question question whether whether the subject traverse subject truly an open open and common common areas, areas, that fall within within the ambit ambit of of Rule Rule 23-l.7(e)(l) 23-1.7(e)(1) area was truly (Aragona v State State ofNew of New York, York, 147 AD3d AD3d 808, [2d Dept Dept 2017]). 2017]). (Aragona To the extent extent that that plaintiff alleged violations violations of of Occupational Occupational Safety Safety and and Health Health plaintiff alleged 7 7 of 13 [*FILED: 8] WESTCHESTER COUNTY CLERK 09/28/2020 03:21 PM NYSCEF DOC. NO. 261 INDEX NO. 53984/2018 RECEIVED NYSCEF: 09/28/2020 Administration ("OSHA") ("OSHA") regulations. regulations. standards standards did not provide basis for liability liability under under Labor Labor Administration provide a basis ~241(6) (Cun-En (Cun-En Lin Lin v Holy Holy Family Family Monuments, Monuments, 18 AD3d AD3d 800, 800, 802 [2d Dept Dept 2005]). 2005]). Law §241(6) Addressing common common law negligence negligence and Labor Labor Law Law §200, ~200, the Second Second Department Department Addressing explains that: explains "Labor Law§ Law ~ 200 200 is a "codification "codification of of the common-law common-law duty duty of of an owner owner or general general "Labor contractor to provide workers with with a safe place place to work" work" (Ortega (Ortega v Puccia, Puccia, 57 A.D.3d A.D.3d 54, 60, 60, 866 contractor provide workers N.Y.S.2d "Cases involving involving Labor Labor Law§ Law ~ 200 fall into two broad categories: namely, namely, those those N.Y.S.2d 323). "Cases broad categories: where workers workers are injured injured as a result result of of dangerous dangerous or defective defective premises conditions at a work work where premises conditions site, and those those involving involving the manner manner in which which the work work is performed" performed" (id. at 61 61,866 N.Y.S.2d , 866 N.Y.S.2d site, When, as here, here, a plaintiff alleged that his injuries injuries arose arose from a dangerous dangerous condition condition on 323). When, plaintiff has alleged premises, a defendant defendant may be liable liable under common law and Labor Labor Law Law §~ 200 200 if if the the premises, under common defendant either either created created the dangerous dangerous condition condition that caused caused the accident accident or had actual actual or defendant constructive notice notice of of the dangerous dangerous condition condition (see Pacheco Pacheco v Smith, Smith, 128 A.D.3d A.D.3d 926, 926, 926, 926, 9 constructive N.Y.S.3d Where the condition condition at issue is both "open and obvious" obvious" and and "not "not inherently inherently N.Y.S.3d 377). Where both "open dangerous," a defendant defendant is not liable liable under under either either a theory theory of of common common law negligence negligence or Labor Labor dangerous," Law ~ 200 (Dinallo (Dinallo v DAL DAL Elec., Elec., 43 A.D.3d A.D.3d 981,982, 981,982,842 519)" Law§ 842 N.Y.S.2d N.Y.S .2d 519)" (Graziano v Source Source Builders Builders & Consultants, Consultants, LLC, 175 AD.3d AD.3d 1253, 1253, 1259, 1259, [2d Dept Dept 2019]). 2019]). (Graziano Proof that a dangerous dangerous condition condition is open open and obvious obvious does does not preclude preclude a finding finding of of Proof liability against against an owner owner for failure failure to maintain maintain property safe condition condition (Russo (Russo v Home Home liability property in a safe Goods, Inc., 119 AD3d AD3d 924, 925 [2d Dept Dept 2014]). 2014]). The issue issue of of whether whether a dangerous dangerous condition condition is Goods, open and obvious obvious is fact-specific, fact-specific, and usually usually a question question for the jury (Mazzarelli v. 54 Plus open jury (Mazzarelli Realty Corp., Corp., 54 AD3d AD3d 1008, 1009 [2d Dept Dept 2008]). 2008]). Realty Given the totality totality of of these these circumstances, circumstances, defendants defendants have have failed failed to eliminate eliminate triable triable Given issues of of fact as to whether whether they created created an unsafe unsafe condition condition for plaintiff (Russo v Home Home Goods, Goods, issues plaintiff (Russo Inc., 119 AD3d AD3d at 926. 926. There There are triable triable issues issues of of fact as to which which parties parties share share in that that responsibility, and each each defendant defendant denies denies that the pallets was owned owned by them, them, or that responsibility, pallets and plastic plastic was condition was created created by them. them. Not witness, not even even plaintiff, plaintiff, knows knows or admits admits to the condition Not one witness, whom the pallet pallet belonged how long long it existed existed in that that condition condition prior prior to his fall fall.. It was a whom belonged or how 8 8 of 13 [*FILED: 9] WESTCHESTER COUNTY CLERK 09/28/2020 03:21 PM NYSCEF DOC. NO. 261 INDEX NO. 53984/2018 RECEIVED NYSCEF: 09/28/2020 common wooden wooden pallet, pallet, and did not bear any markings. markings. The The record record does does show show that prior to July common that prior 2016, Solal Solal Realty Realty was not notified notified of of any complaints complaints regarding regarding debris debris behind of behind the portion portion of 6, 2016, premises leased leased to Dick's, Dick's, including including any plastic plastic on a pallet and/or glass(NYSCEF#l glass(NYSCEF#177). the premises pallet and/or 77). However, neither neither Schimenti Schimenti or Dick's Dick's have established established when when they inspected inspected the area, area, or if if they However, inspected the area area on a regular regular basis. This This is also not a matter matter of of plaintiff plaintiff not identifying identifying what what inspected caused the accident, accident, because has. caused because he has. these reasons, reasons, the branch branch of of moving moving defendants' defendants' motions motions for summary summary judgment For these judgment on causes of of action action for common common law negligence negligence is denied. denied. the causes -Common Law IndemnificationIndemnification-Common well-settled that that summary summary judgment claim for common-law common-law indemnification indemnification "is It is well-settled judgment on a claim appropriate only where where there there are no issues issues of of material material fact concerning concerning the precise degree of of fault appropriate precise degree attributable to each party party involved" involved" (Coque (Coque v Wildflower Wildflower Estates Estates Developers, Developers, Inc., 31 AD3d AD3d 484, 484, attributable 2006]). Accordingly, Accordingly, since since there there are questions questions of of fact as to degree degree of of fault, fault, amongst amongst 489 [2d Dept 2006]). parties, this relief relief is not appropriate appropriate at this this juncture. the parties, juncture. -Contractual IndemnificationIndemnification-Contractual wdl-settled that "[a] party party is entitled entitled to full contractual contractual indemnification indemnification provided provided It is wr ll-settled that intention to indemnify indemnify can_ can ,be clearly implied implied from the language language and and purposes of the that the intention be clearly purposes of entire agreement agreement and and the surrounding surrounding facts and circumstances." circumstances." (Drzewinski (Drzewinski v Atlantic Atlantic Scaffold Scaffold entire & Ladder Ladder Co., 70 NY2d 774, 777, 777, [1987]). [1987]). "[A]n "[A]n indemnification indemnification clause clause that that purports NY2d 774, purports to indemnify a party party for its own own negligence negligence may be enforced enforced where where the party party to be indemnified indemnified is indemnify found to be free of of any negligence negligence and its liability liability is merely merely imputed imputed or vicarious" vicarious" (Lesisz (Lesisz v Salvation Army, Army, 40 AD3d AD3d 1050, 1051 [2d Dept Dept 2007]). 2007]). Salvation 9 9 of 13 [*FILED: 10] WESTCHESTER COUNTY CLERK 09/28/2020 03:21 PM NYSCEF DOC. NO. 261 INDEX NO. 53984/2018 RECEIVED NYSCEF: 09/28/2020 -Branstetter-. -Branstetter-. Branstetter moves moves to dismiss dismiss the cross-claims cross-claims for contractual contractual indemnification indemnification and breach Branstetter breach of of contract contract for failure failure to procure procure insurance insurance coverage coverage asserted asserted by Solal Solal Realty, Realty, Schimenti, Schimenti, Dick's Dick's and Dame, procure insurance Dame, inasmuch inasmuch as Branstetter Branstetter did not agree to indemnify indemnifY them them or procure insurance on their their behalf pursuant pursuant to any written remaining cross behalf written contracts. contracts. The court court agrees. agrees. As for the remaining cross claims, claims, Branstetter contends contends that that "[t]here "[t]here is no admissible admissible evidence evidence or testimony testimony offered offered by any party party Branstetter Branstetter created created the condition condition that plaintiff plaintiff alleges alleges caused caused him him to fall. Nonetheless, Nonetheless, based based that Branstetter upon the record, record, and the testimonies testimonies of of the parties' parties' representatives, representatives, there there is a triable triable issue issue of of fact upon whether Branstetter Branstetter created created the condition condition that plaintiff alleges caused caused him him to fall. The as to whether plaintiff alleges branch of of Branstetter' Branstetter's s motion motion to dismiss dismiss these these remaining remaining cross-claims cross-claims of of Sol Solal Realty branch al Realty Schimenti, Dicks Dicks and Dame Dame is denied. denied. Schimenti, -Solal Realty Realty and Dick'sDick's-Solal Lease between Solal Realty Realty (as Landlord) Landlord) and Dick's Dick's (as Tenant), Tenant), contains contains the The Lease between Solal following indemnification indemnification provision (NYSCEF#223): following provision (NYSCEF#223): Indemnification 11.6 Indemnification Section 11.4, each each Party Party (in the capacity capacity of of "lndemnitor") "Indemnitor") hereby hereby agrees agrees to ""Subject Subject to Section indemnifY, defend defend and hold hold the other other Party Party (in the capacity capacity of of "lndemnitee") "Indemnitee") harmless harmless from and indemnify, against all costs, costs, expenses, expenses, claims, claims, suits, suits, causes causes of of action, action, liabilities, liabilities, losses, losses, fines, fines, penalties, penalties, against charges, judgments, injuries and damage, damage, including, including, without without limitation, limitation, reasonable reasonable attorneys' attorneys' charges, judgments, injuries costs ((collectively "Indemnified Costs") Costs") relating relating to or resulting injuries ...... fees and costs collectively "Indemnified resulting from bodily bodily injuries occurring on the Demised Demised Premises Premises or in other other portions of the Shopping Shopping Center, Center, the Property Property or occurring portions of other adjoining adjoining property property owned owned or controlled controlled by [Solal Realty] Realty] and and arising arising out out of of such such on other Indemnitor's s acts or omissions omissions or use or control control thereof, thereof, except except to the extent extent caused caused by the Indemnitor' negligent or intentional intentional act or omission omission of of the Indemnitee, Indemnitee, its agents, agents, employees employees or other other tenants. tenants. negligent Indemnitor shall shall be promptly notified of of any suits, proceedings, claims or demands The Indemnitor promptly notified proceedings, claims demands for which the Indemnitee Indemnitee requests requests indemnification. indemnification. The Indemnitor Indemnitor shall shall assume assume the entire entire defense defense which thereof and the Indemnitee Indemnitee shall shall cooperate cooperate fully with with the Indemnitor Indemnitor in such such defense". defense". thereof 10 10 of 13 [*FILED: 11] WESTCHESTER COUNTY CLERK 09/28/2020 03:21 PM NYSCEF DOC. NO. 261 INDEX NO. 53984/2018 RECEIVED NYSCEF: 09/28/2020 of the foregoing, foregoing, Solal Realty Realty fails to make make a prima showing of of entitlement entitlement In light of prima facie showing matter of of law on its claim claim for contractual contractual indemnification indemnification against against Dick' Dick's,s, as the to judgment judgment as a matter requires a showing showing of of negligence negligence against against the indemnitor indemnitor before clause is triggered, triggered, and lease requires before the clause finding of of negligence negligence against against Dick' Dick's.s. there has been been no finding event, Dick' Dick'ss does does not oppose oppose the dismissal dismissal of of its cross-claims cross-claims for contribution, contribution, In any event, common-law indemnification indemnification and contractual contractual indemnification indemnification as against against Solal Solal Realty. Realty. These These common-law claims are dismissed dismissed as abandoned. abandoned. claims -Contract between between Dame Dame and SchimentiSchimenti-Contract Schimenti entered entered into Subcontract Subcontract No. 1604402 ("Subcontract") ("Subcontract") with with Dame Dame to Schimenti No. 1604402 perform work on the Project. 79). perform drywall drywall and sheetrock sheetrock work Project. (NYSCEF#l (NYSCEF#179). Article 8 of of the contract, contract, titled titled "Indemnification, "Indemnification, Warranty, Warranty, Insurance, Insurance, & Bonds", Bonds", and in Article particular, Section Section 81 81,, titled titled "Indemnification", "Indemnification", states states as follows, follows, in pertinent pertinent part: particular, part: "To the fullest fullest extent extent permitted permitted by law, the Subcontractor Subcontractor shall shall indemnify, indemnify, defend defend "To Contractor, Owner, Owner, Architect Architect ..... . and the members, members, agents agents and hold harmless harmless the Contractor, employees of of any of of them, them, from and against against all injuries, injuries, claims, claims, damages, damages, and employees losses, liabilities, liabilities, obligations, obligations, settlements, settlements, costs costs and expenses, expenses, whether whether direct direct or losses, indirect or consequential consequential ... ... arising arising out of of or in any way connected connected with with the indirect performance or lack of of performance performance of of the Work Work under subcontract .. ... .and performance under the subcontract caused in whole or in part by any actual or alleged: caused whole part actual alleged: omission or the Subcontractor Subcontractor or anyone anyone directly directly or indirectly indirectly 1. Act or omission retained or engaged engaged by it or anyone anyone for whose whose act it may be liable liable ..... retained .... . Violation of of any statutory statutory duty. regulation, regulation, ordinance, ordinance, rule or obligation obligation by an Indemnitee Indemnitee 2. Violation provided that the violation provided violation arises arises out of of or is in any way connected connected with with the Subcontractor's Subcontractor's performance or lack of of performance of the Work Work under under the Subcontract" Subcontract" (NYSCEF# (NYSCEF# 179). performance performance of From these these circumstances, circumstances, there there are triable triable issues issues of of fact whether whether plaintiff plaintiff failed to From exercise due care so as to avoid avoid tripping tripping over over the pallet that he had had admittedly admittedly observed observed prior prior to exercise pallet that thus, whether whether Dame's Dame's indemnity indemnity obligations obligations are triggered triggered by plaintiffs plaintiffs claim. claim. his fall, and thus, 11 11 11 of 13 [*FILED: 12] WESTCHESTER COUNTY CLERK 09/28/2020 03:21 PM NYSCEF DOC. NO. 261 INDEX NO. 53984/2018 RECEIVED NYSCEF: 09/28/2020 Therefore, Shimenti's Shimenti's motion motion for summary summary judgment third-party cause cause of of action Therefore, judgment on the third-party action contractual indemnification indemnification is denied. denied. for contractual Notwithstanding the foregoing, foregoing, Dame' Dame'ss obligation obligation to defend defend Schimenti Schimenti is distinct distinct from its Notwithstanding indemnity obljgation. obligation. ""An insurer's duty to defend defend is broader broader than than the the duty duty to indemnify indemnify and indemnity An insurer's whenever the allegations allegations of of the complaint complaint against against the insured, insured, liberally liberally construed, construed, arises whenever potentially within the scope scope of of the risks risks undertaken undertaken by the insurer" (McCoy v Medford Medford potentially fall within insurer" (McCoy Landing, L.P., L.P., 164 AD3d AD3d 1436, 1440 [2d Dept Dept 2018]). 2018]). Landing, express language language of of the subject indemnification agreement agreement obligates obligates Dame Dame to defend defend subject indemnification The express Schimenti, which which was triggered triggered by plaintiff making a claim claim for his alleged alleged injuries. injuries. If If any of of the Schimenti, plaintiff making claims against against an insured insured arguably arise from covered covered events, events, the insurer insurer is required required to defend defend the claims arguably arise entire action. Here, Here, Schimenti Schimenti established, established, prima facie, that that the allegations allegations in the complaint complaint entire prima facie, suggested a reasonable coverage. suggested reasonable possibility possibility of of coverage. Lastly, Schimenti Schimenti failed failed to prove prove prima prima facie that that Dame Dame breached breached its contractual contractual Lastly, obligation to procure procure insurance insurance coverage coverage for Schimenti Schimenti (Cuellar (Cuellar v City City of of New New York, York, 139 AD3d AD3d obligation 2016]). 996, 999 [2d Dept. 2016]). Accordingly, it is hereby hereby Accordingly, ORDERED, as from the court court search search of of the record, record, dismisses dismisses plaintiff's plaintiff's claim claim for Labor Labor ORDERED, 241-a, and 240( 240(1), Industrial provisions that are inapplicable inapplicable and abandoned abandoned Law §~~ § 241-a, 1), and the Industrial provisions that pursuant to Labor Labor Law Law 241(6), 241(6), as against against all defendants; defendants; and it is further further pursuant ORDERED, that that motion motion (Seq (Seq 1) by Dame Dame Contracting, Contracting, Inc. Inc. for summary summary judgment, judgment, ORDERED, dismissing the third third party party plaintiff's plaintiff's Complaint Complaint is denied; denied; and it is further further dismissing 12 12 of 13 [*FILED: 13] WESTCHESTER COUNTY CLERK 09/28/2020 03:21 PM NYSCEF DOC. NO. 261 INDEX NO. 53984/2018 RECEIVED NYSCEF: 09/28/2020 ORDERED, that the motion motion by defendant Branstetter (Seq (Seq 2) is granted granted to the extent that ORDERED, defendant Branstetter extent that contractual indemnification indemnification and breach of contract contract causes causes of of action action are dismissed, dismissed, and other contractual breach of and to other claims denied, denied, unless unless otherwise otherwise indicated indicated in this decision; further claims decision; and it is further ORDERED, that Solal Realty Realty and Schimenti' Schimenti's s motion motion (Seq (Seq 3), is denied denied, , except ORDERED, except as indicated herein; herein; and it is Declared: Declared: that Dame Dame is obligated obligated to reimburse reimburse Schimenti costs, indicated Schimenti for costs, disbursements, and attorneys' attorneys' fees incurred incurred in defending defending the main main action; action; and it is further further disbursements, ORDERED, that the parties directed to appear appear in, the Settlement Settlement Conference Conference Part Part in ORDERED, parties are directed Courtroom 1600 of of the Westchester Westchester County County Courthouse, Courthouse, 111 III Dr. Martin Martin Luther Luther King King Jr. Blvd., Courtroom Jr. Blvd., White Plains, Plains, New New York 10601, at a time and place place so designated designated by that that Part. The Clerk shall The Clerk shall White mark his records records accordingly. accordingly. mark matters not herein herein decided decided are denied. denied. This This constitutes constitutes the decision order of of the court. court. All matters decision and order Dated: Dated: To: September 28, 2020 September White Plains, Plains, New York York White Parties by NYSCEF All Parties NYSCEF 13 13 of 13

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