Hanna v New York & Presbyt. Hosp.

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Hanna v New York & Presbyt. Hosp. 2021 NY Slip Op 31876(U) June 3, 2021 Supreme Court, New York County Docket Number: 162278/2015 Judge: Lewis J. Lubell 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. [* 1] INDEX NO. 162278/2015 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 06/03/2021 SUPREME COURT COURT OF THE THE STATE STATE of of NEW NEW YORK , SUPREME YORK COUNTY OF OF NEW NEW YORK YORK COUNTY PRESENT: HON. HON. LEWIS LEWIS J. LUBELL, LUBELL, J.S.C J.S.C ... . PRESENT: PART PART lAS MOTION MOTION 29 IAS -----------------------------------------------------------------J{ -----------------------------------------------------------------x JOHN T. HANNA, HANNA, JOHN INDEX NO.: NO.: 162278/2015 162278/2015 ·. INDEX Plaintiff( ss), ), Plaintiff( DECISION & ORDER. ORDER. DECISION -against-against;.;. THE NEW YORK AND AND PRESBYTERIAN PRESBYTERIAN THE NEW YORK HOSPITAL, JOHN JOHN DOE DOE a fictitious fictitious and unknown unknown HOSPITAL, name, CAULDWELL-WINGATE CAULDWELL- WINGATE COMPANY, COMPANY, INC., INC., name, CAULDWELL-WINGATE, LLC LLC and CAULDWELL-WINGATE, CAULDWELL-WINGATE HOLDING HOLDING COMPANY, COMPANY, INC., INC., CAULDWELL-WINGATE Defendant(s). Defendant( s). -----"-----------------------------------------------------------J{ -----------------------------------------------------------------x THE NEW YORK AND AND PRESBYTERIAN PRESBYTERIAN THE NEW YORK HOSPITAL and CAULDWELL-WINGATE, CAULDWELL-WINGATE, LLC, LLC, HOSPITAL Third-Party Plaintiff(s), Plaintiff(s), Third-Party -against-againstDOOLEY ELECTRIC ELECTRIC COMPANY, COMPANY, INC., INC., DOOLEY ,,., Third-Party Defendant(s). Defendant(s) . Third-Party ------------------------------~----------------------------------x ---------------------------------------------------------------x Introduction Introduction of background, about January January 2015, 2015, plaintiff was a foreperson foreperson for By way of background, in or about plaintiff was third-party defendant defendant Dooley Dooley Electric Electric Company, Company, Inc. (Dooley), (Dooley), which which was was an electrical electrical third-party subcontractor retained retained by defendant/third-party defendant/third-party plaintiff Cauldwell-Wingate, Cauldwell- Wingate, LLC subcontractor plaintiff (Cauldwell) to perform certain work work atthe anhe Harkness Harkness Eye Eye Institute Institute at defendant/third-party defendant/third-party (Cauldwell) perform certain plaintiff York and Presbyterian Presbyterian Hospital Hospital (NYPH) (NYPH) located located at 635 West West 165th 165th plaintiff The New New York Street, New January 15, 2015, 2015, plaintiff allegedly walking walking Street, New York, New New York. On January plaintiff was allegedly through a basement tunnel on the way way to Dooley's Dooley's onsite onsite office office (referred (referred to as a "shanty"). "shanty"). through basement tunnel Plaintiff alleges alleges that he was pinned against the wall of the tunnel tunnel by a passing garbage Plaintiff pinned against wall of passing garbage container attached attached to an electric electric cart cart and suffered suffered various various personal injuries. This This action action container personal injuries. ensued against against NYPH, defendant/third-party plaintiff Cauldwell- Wingate,. . LLC LLC ensued NYPH, defendant/third-party plaintiff Cauldwell-Wingate, Page 1 of6 of6 Page 3 of 8 [* 2] INDEX NO. 162278/2015 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 06/03/2021 (Cauldwell), and defendants defendants Cauldwell-Wingate Cauldwell- Wingate Compan.y, Compan'y, Inc. and Cauldwell-Wingate Cauldwell- Wingate (Cauldwell), Holdmg Company, Company, Inc. (together (together with Cauldwell, Cauldwell, the Cauldwell Cauldwell Defendants). Defendants). The Holdmg The complaint sets forth two two causes causes of of action, action, the first for negligence negligence and and the second second for complaint defendants' alleged alleged failure failure to comply comply with with Labor Labor Law Law §§ SS 200, 240, 241, and and 241-a. 241-a. defendants' Subsequently, NYPH Cauldwell commenced commenced a third-party third-party action action against against Dooley, Dooley, Subsequently, NYPH and Cauldwell setting forth claims claims for indemnification, indemnification, failure failure to procure insurance, and and contribution. contribution. setting procure insurance, Now, Cauldwell Defendants, Defendants, and Dooley Dooley move move for summary summary Now, plaintiff, plaintiff, NYPH NYPH and the Cauldwell judgment. judgment. motion for summary summary judgment, Court is to determine determine whether whether triable triable issues issues On a motion judgment, the Court of fact exist or whether whether judgment granted to a party submitted as a of judgment can be granted party on the proof proof submitted matter of of law (see Andre 361, 364 [1974]). [1974]). The The movant movant must must set Andre v Pomeroy, Pomeroy, 35 NY2d NY2d 361, matter showing of of entitlement entitlement to judgment matter of of law, tendering tendering forth a prima prima facie facie showing judgment as a matter sufficient evidence evidence to demonstrate demonstrate the absence absence of of any material material issue issue of of fact (see Alvarez Alvarez v sufficient Prospect 320, 324 [1986]). [1986]). If If the movant movant sets forth aprimafacie aprimafacie case, case, Prospect Hospital, Hospital, 68 NY2d NY2d 320,324 of going going forward forward shifts shifts to the opponent opponent of of the motion motion to produce evidentiary the burden burden of produce evidentiary proof admissible form sufficient sufficient to establish establish the existence existence of of a material material issue issue of of fact (see proof in admissible Zuckerman of New 557,557 [1980]). Zuckerman v City of New York, 49 NY2d NY2d 557, 557 [1980]). Plaintiff's Motion Motion for Summary Summary Judgment Judgment (Motion (Motion #3) #3) Plaintiff's support of of the motion, motion, plaintiff notes that that NYPH's representative testified testified that that In support plaintiff notes NYPH's representative drove electric electric carts carts in the basement tunnels were were employees employees ofNYPH. ofNYPH. basement tunnels the only people people who drove Plaintiff also notes notes plaintiff deposition testimony testimony surrounding surrounding the accident. accident. Plaintiff Plaintiff Plaintiff plaintiffss deposition asserts that that there there is no evidence evidence to cast doubt doubt on plaintiff version of of events. events. Based Based hereon, hereon, plaintiffss version asserts plaintiff contends that that he has made made a prima showing of of NYPH' negligence. prima facie facie showing NYPH' s negligence. plaintiff contends Plaintiff has made made a prima showing and, as such, the burden of going going forward forward Plaintiff prima facie facie showing burden of opponent of of the motion motion to produce evidentiary proof admissible form produce evidentiary proof in admissible shifts to the opponent sufficient to establish establish the existence existence of of a material material issue issue of of fact (see Zuckerman, Zuckerman, 49 NY2d NY2d at sufficient 557). response, NYPH evidence that that there there were were five people people working working at the the In response, NYPH proffers proffers evidence of plaintiff alleged accident accident that that would would have have been operating the the electric electric carts carts in the the time of plaintiffss alleged been operating basement tunnels. NYPH affidavits from each each of of these these five individuals, individuals, who who NYPH also proffers proffers affidavits basement tunnels. they were were not not involved involved in any accident accident with with plaintiff. all aver that they plaintiff. Viewing the evidence evidence in the light most most favorable favorable to the non-moving non-moving party (Stonehill Viewing party (Stonehill Capital Mgt., LLC of the W, W, 28 NY3d 439,448 [2016]), NYPH succeeded in Capital LLC v Bank Bank of NY3d 439, 448 [2016]), NYPH has succeeded raising raising a material material issue issue of of fact. Accordingly, Accordingly, Motion Motion #3 is denied. denied. Page 2 of6 of6 Page 4 of 8 [* 3] INDEX NO. 162278/2015 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 06/03/2021 #4) (Motion #4) Cauldwell (Motion and Cauldwell NYPH and by NYPH The filed by Judgment filed Summary Judgment Motion for Summary The Motion and (6), and 240,241 Law§§ Labor Law that Labor In SS 240, 241 (6), contend that defendants contend motion, defendants their motion, of their support of In support plaintiff ss Regarding plaintiff accident. Regarding alleged accident. 241-a plaintiff s alleged and plaintiff plaintiff and inapplicable to plaintiff are inapplicable 241-a are basemen t the that the basement things, that other things, among other claim contend, among defendants contend, Law S§ 200, defendants Labor Law under Labor claim under defendants Further, defendants j obsite. Further, the jobsite. of the part of not part tunnel was not occurred was accident occurred alleged accident where the alleged tunnel where 200 Law S§ 200 Labor Law under Labor negligence and under law negligence contend common law claims for common plaintiff s claims that plaintiffs contend that evidence and y testimon and evidence the testimony because all the against untenable because Defendants are untenable Cauldwell Defendants the Cauldwell against the accident . the accident. where the area the control not indicates that the Cauldwell Defendants did not control the area where indicates that the Cauldwell Defendants tunnels, t basemen tunnels, of the basement use ofthe the use on the occurred, contractors on of the contractors instruct any ofthe direct or instruct not direct did not occurred, did condition. dangerous condition. alleged dangerous of the alleged notice of and constructive notice actual or constructive have actual not have and did not electric the electric that the indicates that also indicates evidence also and evidence Moreover, testimony and that the testimony note that defendants note Moreover, defendants the by the operated by maintained, or operated owned, maintained, cart not owned, was not accident was alleged accident involved in the alleged cart involved Lastly,. Defendants. Lastly,. Cauldwell Defendants. the Cauldwell of the Cauldwell employee of driven by an employee Defendants or driven Cauldwell Defendants from indemnification from contractual indemnification NYPH dwellll contend entitled to contractual they are entitled that they contend that Cauldwe and Caul NYPH and between tract) (Subcon subcontract (Subcontract) the subcontract Dooley. between that the assert that Cauldwell assert NYPH and Cauldwell Dooley. NYPH fully and , harmless hold defend, required Cauldwell and Dooley provides that Dooley is required to defend, hold harmless, and fully Dooley provides that Dooley Cauldwell plaintiff. made by plaintiff. claims made indemnify dwellll for the claims Cauldwe NYPH and Caul indemnify NYPH summary arguments for summary movants ' arguments the movants' In address the not address plaintiff does not response, plaintiff In response, proffers Plaintiff proffers 241-a. Plaintiff and 241-a. 240,241 judgment 99 240, 241 (6), and Law§§ Labor Law under Labor claims under judgment as to the claims to jobsite the from travel to manner travel from regular manner evidence jobsite to the regular were the tunnels were basement tunnels the basement evidence that the whether to whether fact as to of fact issue of material issue .· Dooley's there is a material contends, there plaintiff contends, Thus, plaintiff shanty. Thus, Dooley's shanty. Plaintiff shanty. Plaintiff Dooley' s shanty. access to Dooley's the provided access jobsite, as it provided the jobsite, ofthe part of was part tunnel was subject tunnel the subject the to the prior to just prior fast" "very traveling was traveling "very fast" just also testified that cart was electric cart that the electric that he testified notes that also notes wall the wall struck the pulling, struck was pulling, cart was electric cart accident which the electric container, which garbage container, that the garbage accident and that plaintiff Thus, wall. the against the wall. Thus, plaintiff him against of pinned him and pinned bounced off, and opposite him, bounced tunnel opposite the tunnel of the electric. the electric. operating the was operating NYPH whether contends, there. is a material issue of fact as to whether NYPH was material issue of contends, there· erratically. cart cart erratically. any that any allege that not allege does not plaintiff does that plaintiff ,' In things, that among either things, notes, among Dooley notes, response, Dooley In response, and NYPH and accident and NYPH and plaintiff s accident negligence contributed to plaintiffs Dooley contributed of Dooley part of negligence on the part to contributed to caused or contributed actions s Dooley' C.auldwell have not produced any evidence that Dooley's actions caused that evidence C_auldwell have not produced the at Dooley at the for Dooley working for was working plaintiff was that plaintiff the mere fact that that the mere asserts that Dooley asserts accident. Dooley the accident. Subcontract. the of n provisio ty indemni provision of the Subcontract. the indemnity time trigger the insufficient to trigger accident is insufficient of the accident time of 5Law§S 5Obligations Law General Obligations provided, General Dooley Subcontract so provided, if the Subcontract even if that, even contends that, Dooley contends party. t negligen party. the negligent indemnify the 322.1 renders agreement to indemnify unenforceable an agreement renders unenforceable Labor under Labor claims under plaintiff s claims Defendants showing as to plaintiff facie showing prima facie made a prima have made Defendants have plaintiff to shifts forward shifts plaintiff going forward of going burden of Law 99 240, 241 (6), and the burden such, the 241-a and, as such, and 241-a Law §§ of aa existence of the existence establish to t sufficien form le to establish the admissib form sufficient proof in admissible evidentiary proof produce evidentiary to produce aspect this aspect oppose this not oppose did not Plaintiff did 557). Plaintiff material NY2d at 557). Zuckerman, 49 NY2d of fact (see Zuckerman, material issue of of6 Page Page 3 of6 5 of 8 /' / [* 4] INDEX NO. 162278/2015 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 06/03/2021 commo n plainti ffs claims of Court conside considersrs the motion claims for common motion as to plaintiffs Next, the Court motion. Next, the motion. of the 200. Law S§ 200. Labor Law under Labor law negligence negligence and under commo n claims for common plainti ffs claims NYPH showing as to plaintiffs a prima facie showing make aprimafacie failed to make has failed NYPH has trate demons not does not demonstrate evidence does proffered evidence law The proffered Law §S 200. The Labor Law under Labor negligence and under law negligence in negligent in was negligent employee was whether its employee an of fact as to whether issue of material issue of any material absence of an absence (cf accident (cf alleged accident of the alleged time of operating tunnel at the time NYPH' s tunnel electric cart in NYPH's the electric operating the 2017]). Dept 2017]). 925-26 [2d Dept Richardson Nassau, AD3d 924, 925-26 au, 156 AD3d a/Nass County of Richardson v County claims plainti ffs claims The Cauldw Cauldwell showingg as to plaintiffs acie showin primaffacie made a prima have made Defendants have ell Defendants The they that they evidenc e that proffering evidence for Law S§ 200 by proffering Labor Law under Labor negligence and under law negligence common law for common responsibility alleged acciden had accidentt and no responsibility plainti ffss alleged of plaintiff location of over the location responsibility over no responsibility had no cart) electric cart) the electric attached to the container attached over garbage container (that is, the garbage mechanism (that alleged mechanism the alleged over the 99 Inc., 99 Bldg. Inc., Skanska USA Bldg. ianca v Skanska involved Cappabianca accident (see Cappab alleged accident plainti ffs alleged in plaintiffs involved in plaintif f to plaintiff shifts to forward shifts going forward of going AD3d 139, 144 144 [I st Dept burden of the burden result, the 2012]). As a result, Dept 2012]). [1st AD3d 139, of aa existence of the existence establish the to sufficient to establish form sufficient admissible form proof in admissible evidentiary proof produce evidentiary to produce the within the worksit e within Although a worksite 557). Although material issue of NY2d at 557). Zuckerman, 49 NY2d of fact (see Zuckerman, material issue work construction work where construction area where actual area meaning the actual limited to the Law §S 200 is not limited Labor Law of Labor meaning of ntal Occide v Zito 1992]; Dept 240 [1st Dept occurs (see (see Rivera Zito v Occidental AD2d 239, 240 Squibb Corp., 184 AD2d Rivera v Squibb occurs the that the testimony that plainti ffs testimony Dept 1999]), Chem. [4th Dept 1999]), plaintiffs AD2d 1015, 1016 [4th Corp., 259 AD2d Chem. Corp., does shanty does Dooley 's shanty jobsite to Dooley's basement travel from the jobsite manner to travel regular manner was the regular tunnel was basement tunnel the Next, the e. worksit the of scope of the worksite. Next, not, of fact as to the scope issue of material issue raise a material more, raise without more, not, without indemnification. contract indemnification. Court claim for contract plainti ffss claim motion as to plaintiff considers the motion Court considers motion their motion on their showin g on facie showing prima facie NYPH make a prima failed to make have failed Cauldwell have and Cauldwell NYPH and Dooley. against Dooley. indemnification against for contractual indemnification claim for contractual their claim judgme nt on their summary judgment for summary contract the contract where the indemnification where Summary contractual indemnification claim for contractual appropriate on a claim is appropriate relief is Summary relief must party must contracting party one contracting that one intention that is unambiguous clearly sets forth parties' intention the parties' forth the unambiguous and clearly is LLC, Marks, Ren v Gioia Hong-Bao Ren indemnify Gioia St. Marks, LLC, sustained (see Hong-Bao injuries sustained another for the injuries indemnify another indemnification tual indemnification contrac to right 163 AD3d such, "[t]he contraCtual "[t]he right 2018]). As such, Dept 2018]). 494,49 6 [1st Dept AD3d 494,496 163 137 York, 137 New York, of New City of (Trawally v City depends contract" (Trawally of the contract" language of specific language upon the specific depends upon 2016]). AD3d Dept 2016]). 492-93 [1st Dept 492, 492-93 AD3d 492, relevant provides in relevant nity," provides Section 8 8 of Subcontract, "Indemnity," entitled "Indem which is entitled tract, which the Subcon of the Section to agrees to SUBCO NTRAC TOR agrees part permitted by law, SUBCONTRACTOR extent permitted fullest extent the fullest "[t]o the that "[tJo part that against and against from and OWNE R ... indemnify, ... from CONTR ACTOR and OWNER defend CONTRACTOR harmless and defend hold harmless indemnify, hold part: relevant part: provides in relevant any of of the .... " Section Section 8.3 provides claims .... following claims the following any arising persons ... "Any claim ... ... on accoun accountt of of injury injury to [] persons ... arising "Any claim of omissions of directly of the acts or omissions out of indirectly out directly or indirectly work, performance of SUBCONTRACTOR . . . in the performance of the work, NTRACTOR ... SUBCO liability claims, loss or liability such claims, including, limitation, such without limitation, including, without or ACTOR CONTR of CONTRACTOR arising duties of non-delegable duties under non-delegable arising under of6 Page Page 4 of6 6 of 8 [* 5] INDEX NO. 162278/2015 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 06/03/2021 OWNER OWNER (such (such as claims claims by OSHA) OSHA) or arising arising from the use or operation by SUBCONTRACTOR SUBCONTRACTOR of of construction construction equipment, equipment, operation tools, scaffolding or facilities furnished to tools, scaffolding facilities furnished SUBCONTRACTOR SUBCONTRACTOR by CONTRACTOR CONTRACTOR or OWNER OWNER to perform Work." perform the Work." NYPH and Cauldwell NYPH Caul dwell assert, assert, among among other other things, things, that this language language requires requires Dooley Dooley to indemnify NYPH and Cauldwell indemnity NYPH Cauldwell for any claims claims resulting resulting from the work work or operations operations of of The cited cited portions of the Subcontract Subcontract do not require require Dooley Dooley to indemnify indemnity NYPH Dooley. The portions of NYPH (purportedly the Owner) Owner) and Cauldwell Cauldwell (purportedly (purportedly the Contractor) Contractor) for claims claims "resulting "resulting (purportedly Dooley's work," work," but from the acts or omissions omissions of of Dooley Dooley in the performance of its performance of from Dooley's Dooley's use or operation operation of of construction construction equipment, equipment, tools, tools, scaffolding scaffolding or . work or in Dooley's facilities furnished NYPH to perform perform the work. furnished to Dooley Dooley by Cauldwell Cauldwell or NYPH work. Plaintiff Plaintiff was was allegedly struck struck by a garbage garbage container container operated operated by an NYPH employee while while plaintiff allegedly NYPH employee plaintiff walking in a basement tunnel on the way way to Dooley's Dooley's shanty. shanty. No alleged or basement tunnel No party party has alleged was walking submitted evidence evidence that that plaintiff injured as a result result of of the acts or omission omission of of Dooley Dooley submitted plaintiff was injured injured as a result result of of Dooley's Dooley's use or operation operation of of anything anything provided or that plaintiff plaintiff was injured provided by Cauldwell Caul dwell and NYPH. NYPH. Accordingly, Motion Motion #4 is granted granted as to plaintiffs claims under under Labor Labor Law§§ Law SS 240, 240, plaintiffs claims Accordingly, 241 (6), and 241-a; 24!-a; Motion Motion #4 is denied denied as to plaintiff claims for common common law negligence negligence 241 plaintiffss claims Labor Law Law §S 200 as against against NYPH; Motion #4 is granted granted as to plaintiffs claims NYPH; Motion plaintiffs claims and under under Labor common law negligence negligence and under under Labor Labor Law Law § S 200 as against against the Cauldwell Cauldwell for common Defendants; and Motion Motion #4 is denied denied as to the claim claim of of NYPH Cauldwell for NYPH and Cauldwell Defendants; contractual indemnification indemnification against against Dooley. Dooley. contractual Dooley's Motion Motion for Summary Summary Judgment Judgment (Motion (Motion #2) Dooley's support of of the motion, motion, Dooley Dooley cites the indemnification indemnification provision of the the In support provision of Subcontract and contends contends that the claim claim for contractual contractual indemnification indemnification fails because the Subcontract because the party seeking seeking indemnity indemnity was the alleged alleged active active tortfeasor. tortfeasor. Dooley Dooley notes notes that that plaintiff plaintiff supporting evidence evidence indicates indicates that that the active active tortfeasor tortfeasor was an employee employee alleges and all the supporting of NYPH Dooley. As such, such, Dooley Dooley contends contends that NYPH and Caul Caul dwell dwell cannot cannot of NYPH and not Dooley. NYPH and contractual indemnification, indemnification, citing citing General General Obligations Obligations Law Law (GOL) (GOL) § S 5-322.1, 5-322.1, cannot cannot seek contractual common law indemnification, indemnification, and is not entitled entitled to contribution. contribution. Dooley Dooley also also obtain common proffers evidence that it procured insurance as required required by the Subcontract. Subcontract. proffers evidence procured the insurance Dooley has made made a prima facie showing showing (see GOL GOL §S 5-322.1; 5-322.1; Glaser Glaser v M FortunofJ Dooley primafacie Fortunoff of Westbury Westbury Corp., 71 NY2d 643, 646 [1988]). [1988]). As a result, result, the burden of going going forward forward of NY2d 643,646 burden of evidentiary proof admissible form sufficient sufficient to establish establish the the proof in admissible shifts to plaintiff plaintiff to produce produce evidentiary existence of of a material material issue issue of of fact (see Zuckerman, Zuckerman, 49 NY2d NY2d at 557). existence Page 5 of6 of6 Page 7 of 8 [* 6] INDEX NO. 162278/2015 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 06/03/2021 NYPH Caul dwell contend, contend, among among other other things, entitled to NYPH and Cauldwell things, that that they they are entitled contractual indemnification because the evidence establishes that plaintiff was employed contractual indemnification because evidence establishes that plaintiff employed by Dooley, time of of the accident, accident, and was was using using NYPH's Dooley, that he was working working at the time NYPH's "facilities" in connection connection with Dooley's Dooley's work. "facilities" work. NYPH Cauldwell have failed to raise raise a material issue of of fact. Initially, Initially, the Court Court NYPH and Cauldwell material issue of plaintiff alleged accident accident do not trigger of plaintiffss alleged trigger the the indemnity indemnity provision provision of finds that that the facts of the Subcontract; plaintiffs alleged not arise out Subcontract; specifically, specifically, the Court Court finds that that plaintiffs alleged claims claims do not out of the acts or omissions of Dooley of its work work or in Dooley's Dooley's use or of omissions of Dooley in the performance performance of operation of of construction construction equipment, equipment, tools, tools, scaffolding scaffolding or facilities facilities furnished furnished to Dooley Dooley by operation Cauldwell or NYPH Cauldwell have Cauldwell NYPH to perform perform the work work and NYPH NYPH and Cauldwell have not not produced produced any evidence to the contrary. even if Court were interpret the indemnity indemnity evidence contrary. Regardless, Regardless, even if the Court were to interpret provision Cauldwell, such an interpretation urged by NYPH NYPH and Cauldwell, interpretation vis-ii-vis vis-a-vis NYPH NYPH would would provision as urged be violative of GOL § 9 5-322.1 5-322. I (1), (I), which agreement to violative of which provides provides in pertinent pertinent part part that that an agreement indemnity damage arising arising from that that party's negligence is against against public public indemnify a party party for damage party's own own negligence void and unenforceable Properties, LLC, 183 AD3d policy and is void policy unenforceable (see Cackett v Gladden Properties, AD3d 419,422 specifically addressed finds 419, 422 [1st Dept Dept 2020]). 2020]). To the extent extent not specifically addressed herein, herein, the Court Court finds the remaining arguments of of NYPH Cau1dwell to be without NYPH and Cauldwell without merit. merit. Accordingly, Accordingly, remaining arguments Motion #2 is granted. granted. Motion Conclusion Conclusion Based on the foregoing, foregoing, it is hereby hereby Based ORDERED that Motion GRANTED in its entirety entirety and the third-party action third-party action ORDERED Motion #2 is GRANTED dismissed; and it is further further is dismissed; ORDERED that Motion DENIED in its entirety; entirety; and and it is further further ORDERED Motion #3 is DENIED ORDERED that Motion GRANTED as to plaintiffs under Labor Labor Law plaintiffs claims claims under Law ORDERED Motion #4 is GRANTED 99240 ,241 common law law negligence negligence §§ 240, 241 (6), and 241-a, 241-a, DENIED DENIED as to plaintiffs plaintiffs claims claims for common Labor Law §9 200 as against against NYPH, claims for and under under Labor NYPH, GRANTED GRANTED as to plaintiffs plaintiffs claims common law negligence negligence and under against Cauldwell; Cau1dwell; and DENIED Law§9 200 as against DENIED common under Labor Labor Law claim for contractual contractual indemnification indemnification against against Dooley. Dooley. as to their their claim Dated: New York, Dated:New York, New New York York Junel,2021 June~, 2021 ~·~ <_z;f::;::/~---~ ~>1f?~~----=,\ // .. /-~~ _:;) _:;; -~ HON. LEWIS LUBELL, J.S.C. J.S.C. HON. LEWIS J. LUBELL, Page 6 of of66 Page 8 of 8

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