Yocum v United States Tennis Assn. Inc.

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Yocum v United States Tennis Assn. Inc. 2021 NY Slip Op 32615(U) December 9, 2021 Supreme Court, New York County Docket Number: Index No. 156636/2016 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. 156636/2016 NYSCEF DOC. NO. 252 RECEIVED NYSCEF: 12/09/2021 SUPREME COURT COURT OF THE THE STATE STATE OF OF NEW SUPREME NEW YORK YORK COUNTY OF NEW NEW YORK YORK COUNTY PRESENT: HON. LEWIS LEWIS J. LUBELL, LUBELL, J.S.C. J.S.C. PRESENT: PART PART , ' lAS IAS MOTION MOTION 29 ---------------------------------------------------------- .----- X -----------------------------------------------------------~-----x MICHAEL YOCUM YOCUM and BOBBIE BOBBIE YOCUM YOCUM , MICHAEL ' INDEX 1566~6/2016 INDEX NO.: 1566~6/2016 Plaintiff(s), Plaintiff(s), -against-againstUNITED STATES STATES TENNIS TENNIS ASSOCIATION ASSOCIATION UNITED INCORPORATED, USTA USTA NATIONAL NATIONAL TENNIS TENNIS INCORPORATED, CENTER INCORPORATED, INCORPORATED, and HUNT HUNT CENTER CONSTRUCTION GROUP, GROUP, INC., CONSTRUCTION DECISION DECISION & ORDER ORDER ON MOTION MOTION Defendant(s). Defendant( s). -----------------------------------------------------------------x -----------------------------------------------------------------x UNITED STATES STATES TENNIS TENNIS ASSOCIATION ASSOCIATION UNITED INCORPORATED, USTA USTA NATIONAL NATIONAL TENNIS TENNIS INCORPORATED, CENTER INCORPORATED, INCORPORATED, and HUNT HUNT CENTER CONSTRUCTION GROUP, GROUP, INC., CONSTRUCTION Third-Party Plaintiffs, Plaintiffs, Third-Party -against-againstBIRDAIR, INC. AND AND HY-SAFE HY-SAFE TECHNOLOGY, TECHNOLOGY, BIRDAIR, Third-Party Defendant(s) Defendant(s) .. .. Third-Party ______________________________________________________ -----------x -----------------------------------------------------------------x Introduction Introduction of background, background, on July 31, 2016, 1016, plaintiff plaintiff Michael Michael Yocum By way of Yocum (plaintiff) (plaintiff) was was employed by third-party third-party defendant defendant Birdair, Birdair, Inc. (Birdair) (Birdair) to perform perform certain certain work work at the employed Arthur Ashe Ashe Tennis Tennis Stadium Stadium (Stadium) (Stadium) in Flushing, Flushing, Queens. Queens. On that Arthur that day, plaintiff plaintiff was was assisting with the installation installation of of a banner banner on the roof roof of of the Stadium Stadium and, at sOII]epoint, assisting some point, allegedly fell and sustained sustained various various personal personal injuries. injuries. Plaintiffs Plaintiffs commenced allegedly commenced this this action action amended. The The amended amended with the filing of of a summons summons and complaint, complaint, which which was later later amended. complaint alleges, alleges, among among other other things, things, that defendant defendant United United States States Tennis complaint Tennis Assbciation Assbciation Incorporated (USTA) (USTA) and defendant defendant USTA USTA National National Tennis Tennis Center Incorporated Center Incorporation Incorporation (National Tennis Tennis Center) Center) are the owners owners of of the Stadium, Stadium, who (National who hired hired defendant defendant Hunt Hunt Construction Group, Group, Inc. (Hunt) (Hunt) as a general general contractor contractor and hired hired Birdair Construction Birdair to perfon~ perfor~ certain certain Stadium. Plaintiffs Plaintiffs commenced commenced this action, action, setting setting forth claims work at the Stadium. claims for viblations violations Page 1I of5 of5 Page 3 of 7 [* 2] INDEX NO. 156636/2016 NYSCEF DOC. NO. 252 RECEIVED NYSCEF: 12/09/2021 of of Labor Labor Law Law §§ SS 200, 240, and 241 ((I)1) as well as a claim claim for loss of of consortium. consortium. Thereafter Thereafter defendants defendants commenced commenced a _third-party .third-party ~ction against against third-party third-party defendant defendant Hy-Saf~ Hy-Saf~ Technology (Hy-Safe), (Hy-Safe), settmg settmg forth claims claIms for contractual contractual indemnification, indemnification, breach breach of of Technology c?ntract, common common (aw ~awindemnification, contribution (that (that is, the third, third, fourth, fourth, pfth, pfth, and c?ntract, indemnification, and contribution ~Ixth causes causes of of a_ct10n!a.ctlOn!. Subsequently, Subsequently, plaintiffs plaintiffs moved moved (Motion (Motion #3) for partial partial summary summary ~1xth Judgment on the1r theIr clauns claIms under under Labor Labor Law§§ Law SS 240 and 241 (6); Hy-Safe Hy-Safe moved moved (Motion (Motion Judgment summary judgment; defendants moved moved (Motion (Motion #5) for summary summary judgment. #4) for summary judgment; and defendants judgment. !uly 9, 2?21, 2?21, the Court Court denied denied plaintiffs plaintiffs motion motion (Motion (Motion #3); granted granted Ijy-Safe's lfy-Safe's On !uly motIon (Motion (MotIon #4) as to the claims claims for contractual contractual indemnification, indemnification, common common Jaw law mot10n indemnification, and contribution contribution and denied denied it as to the claim claim for breach breach of of contract· contract. indemnification, ', ,' and granted defendants' defendants' motion motion (Motion (Motion #5) as to any claims claims against against USTA USTA and otherwise otherwise granted denied the motion. motion. On July 13, 13,2021, counsel.for Hy-Safe filed a copy of of this order order with with denied 2021, counsel .for Hy-Safe of entry. notice of Now, Hy-Safe Hy-Safe moves moves to reargue reargue and/or and/or renew renew (Motion (Motion #6) its prior prior motion,as motion,as to the Now, claim for breach breach of of contract contract and plaintiffs plaintiffs cross-move cross-move to reargue reargue their their motion motion as to the claim under under Labor Labor Law§ Law S 241 and third-party third-party plaintiffs plaintiffs move move (Motion (Motion #7) to reafgue reargue HySafe's motion motion on the issue of of liability liability as to contractual contractual indemnification. indemnification. The Court Court Safe's The addresses the motions motions in order. addresses Hy-Safe's Motion Motion to Reargue Reargue and/or and/or Renew Renew (Motion (Motion #6) Hy-Safe's support of of the motion motion to reargue reargue Motion Motion #4 as to the claim claim for breach breach of of contract, contract, In support Hy-Safe asserts asserts that the Court Court overlooked overlooked the fact that that the third-party third-party plaintiffs plaintiffs iere ~ere not Hy-Safe parties to the contract contract (Subcontract) (Subcontract) between between Hy-Safe Hy-Safe and Birdair, Birdair, which which required required Hy-Safe By-Safe parties obtain certain certain insurance. insurance. Hy-Safe Hy-Safe asserts asserts that that the Subcontract Subcontract did not require require Hy-Safe fly-Safe to obtain name the third-party third-party plaintiffs plaintiffs as additional additional insured insured on the insurance insurance beyond beyond the to name commercial general general liability liability policy. policy. commercial In support support of of the motion motion to renew renew Motion Motion #4 as to the claim claim for breach breach of of contract, contract, Hy-Safe presents presents a certificate certificate of of insurance. insurance. Hy-Safe Hy-Safe asserts asserts that that this this certificate certificate evinces evinces Hy-Safe Hy-Safe obtained obtained all of of the required required insurance insurance policies. policies. that Hy-Safe CPLR 2221 provides provides that that a motion motion to reargue reargue "shall "shall be based based upon upon matters matter~ of of fact CPLR allegedly overlooked overlooked or misapprehended misapprehended by the court court in determining determining the prior prior or law allegedly motion, but shall not include include any matters matters of offact offered on the prior prior motion" motion" (see CPLR CPLR fact not offered motion, Motion #4, Hy-Safe Hy-Safe asserted asserted that the claim claim for breach breach of of contract contract should should 2221 [[d] d] [2]). In Motion dismissed because because Hy-Safe Hy-Safe obtained obtained a commercial commercial general general liability liability policy. policy. be dismissed In opposition, third-party third-party plaintiffs plaintiffs noted noted that, under under the Subcontract, Subcontract, Hy-Safe Hy-Safe was was required required opposition, obtain more more than simply simply commercial commercial general general liability. liability. In reply, reply, Hy-Safe Hy-Safe merely merely reto obtain iterated that it has obtained obtained the required required insurance. insurance. iterated Initially, the Court Court notes notes that the Subcontract Subcontract proffered proffered by Hy-Safe Hy-Safe is 11 II pages pages in Initially, proffered by the third-party third-party plaintiffs plaintiffs is 26 pages pages in length length and neither neither length and the one proffered of5 Page 2 of5 4 of 7 [* 3] INDEX NO. 156636/2016 NYSCEF DOC. NO. 252 RECEIVED NYSCEF: 12/09/2021 authenticated by anyone anyone with personal knowledge of of the Subcontract. Subcontract. The The relevant relevant is authenticated personal knowledge ~ortlOn oft~e of t~e Su~c?ntract, Su~c?ntract, which which Hy-Safe Hy-Safe asserts asserts the Court Court overlooked, overlooked, does not not appear appear ~ortwn III Hy-Safe Hy-Safe s exh1b1t, exhIbIt, but does appear appear in the third-party third-party plaintiff's exhibit. Although Although m plaintiff's exhibit. empowered to search search the record record on a motion motion for summary summary judgment empowered judgment (see, e.g., New Ham?shlre AD3d 463, 467 [1st Dept Dept 2013)), 2013]), it is not not Ham?sh1re Ins. Co. v MF MF Glob., Inc., 108 AD3d reqUired and the Court Court declines declines to do so here. here.!1 reqmred CPLR 2221 provides motion to renew renew "shall "shall be based new facts not CPLR provides that a motion based upon upon new offered on the prior motion that would would change change the prior determination or shall shall demonstrate demonstrate offered prior motion prior determination that there has been a change prior determination; change in the law that would would change change the prior determination; and [] [J contain reasonable reasonable justification failure to present such facts on the prior shall contain justification for the failure present such prior motion" (see CPLR 2221 [e] [2] & [3]). Here, the "new fact" presented by Hy-Safe Here, "new fact" presented Hy-Safe is a motion" (see CPLR document entitled entitled "certificate "certificate of of liability liability insurance." insurance." The The document document purportedly shows document purportedly shows Hy-Safe had certain certain types types of of insurance insurance on the date of of the subject subject accident. accident. This This that Hy-Safe document is not authenticated authenticated by anyone anyone with with personal knowledge. No with personal personal knowledge. No one with personal document knowledge swears swears that this insurance insurance policy effect on the date date of of the accident accident or knowledge policy was in effect explains how to read the document. document. Overlooking Overlooking all of of this, Hy-Safe Hy-Safe does does notpresent not present any explains justification failure to present document on the prior motion. justification for its failure present this document prior motion. Plaintiff's Cross-Motion Cross-Motion to Re-argue Re-argue Plaintiff's August 18, 2021, plaintiffs instant cross-motion cross-motion to reargue. reargue. In support support On August plaintiffs filed the instant of the motion motion to reargue reargue Motion Motion #3 on their their claims claims under under Labor Labor Law§ Law 9 241 (6), plaintiffs of plaintiffs contend that there there is no evidence evidence that Industrial Industrial Code Code (12 NYCRR) was not not contend NYCRR) §923-1.7 23-1.7 (d) was violated. As such, plaintiffs contend, the Court Court should should grant grant reargument reargument and, upon violated. plaintiffs contend, upon reargument, award award summary summary judgment claim under under Labor Labor Law Law §9 241 reargument, judgment to plaintiffs plaintiffs on the claim (6). opposition, defendants defendants make make several several arguments. arguments. First, First, defendants defendants assert assert that In opposition, plaintiffs' motion is untimely, made within within 30 days of of the filing of of the subject subject plaintiffs' motion untimely, as it was not made order with notice notice of of entry. Second, Second, defendants defendants assert assert that that they they previously previously proffered proffered order sufficient evidence evidence that, among among other other things, things, plaintiff with a fall protection sufficient plaintiff was provided provided with protection ff to safely safely access access all points relevant roof. As a result, result, system that pennitted pennitted plainti plaintiff points on the relevant defendants contend, contend, even even if if a violation violation of of the Industrial Industrial Code Code is found, found, a jury could still jury could defendants employer acted in a reasonable reasonable manner manner to prevent hazard. prevent the hazard. find that plaintiff's plaintiff's employer CPLR 2221 (d) (3) provides motion to reargue reargue shall shall be made made within within 30 days days CPLR provides that a motion service of of the order order determining determining the prior motion and written written notice notice of of its entry. entry. As after service prior motion order with notice notice of of entry was filed on July 13, 13,2021 not noted above, the order 2021 and plaintiff plaintiff did not instant motion motion until August August 18, 2021, after after the lapse lapse of of more more than than 30 days. days. Thus, Thus, file the instant 1 I Indeed, where, as here, there are numerous, related, and varying contracts, it would would be an improvident improvident use of of discretion for the Court Court to search search the imperfect imperfect record record and fix the rights rights of of the parties therefrom. discretion parties therefrom. Page 3 of5 of5 Page 5 of 7 [* 4] INDEX NO. 156636/2016 NYSCEF DOC. NO. 252 RECEIVED NYSCEF: 12/09/2021 motion is untimely untimely and plaintiffs plaintiffs have presented presented nothing nothing in the moving moving papers papers to the motion address this failure. fai lure. address Although the Court Court may reconsider reconsider its prior prior interlocutory interlocutory orders orders even when when Although presented with an untimely untimely motion motion under under CPLR CPLR 222 I ((d) AD3d presented d) (3) (see Projita Profita v Diaz, Diaz, I100 00 AD3d 481,481 [1st Dept Dept 2012]), 2012]), the Court Court is not required required to do so. Here, Here, viewing viewing the evidence evidence 481,481 favorable to the non-moving non-moving party party (see Stone Stonehill Capital Mgt., LLC in the light most favorable hill Capital LLC vv Bank Bank of the W, W, 28 NY3d [2016]), the Court Court found that that defendants defendants had submitted submitted of NY3d 439, 448 [2016]), sufficient evidence evidence in opposition opposition to Motion Motion #3 to raise raise a material material issue issue of of fact and plaintiffs plaintiffs sufficient presented nothing nothing in the instant instant cross-motion cross-motion to persuade persuade the Court Court that that it overlooked overlooked have presented misapprehended any matter matter oflaw oflaw or fact in reaching reaching that that decision. decision. or misapprehended Third-Party Plaintiffs' Plaintiffs' Motion Motion to Reargue Reargue (Motion (Motion #7) Third-Party support of of the motion motion to reargue reargue Motion Motion #4 as to claim claim for contractual contractual In support indemnification, the third-party third-party plaintiffs plaintiffs contend contend that that the Court Court improperly improperly granted granted indemnification, summary judgment Hy-Safe on their their claim for contractual contractual indemnification. indemnification. The thirdthirdsummary judgment to Hy-Safe plaintiffs assert assert that the contract contract (Subcontract) (Subcontract) between between Hy-Safe Hy-Safe and Birdair Birdair party plaintiffs provides, among among other other things, things, that Hy-Safe Hy-Safe will indemnify indemnif'y third-party third-party plaintiffs plaintiffs for the provides, negligence ofBirdair. of Bird air. negligence granting Motion Motion #4 as to third-party third-party plaintiffs' plaintiffs' claim claim for contractual contractual In granting indemnification, the Court Court noted noted that that Hy-Safe Hy-Safe had made made a prima facie showing showing that that it did primafacie indemnification, contribute to the happening happening of of plaintiffs plaintiff s accident accident and that that third-party third-party plaintiffs plaintiffs not cause or contribute proffer any evidence evidence to raise a material material issue issue of of fact. The Subcontract Subcontract had failed to proffer provides in relevant relevant part: provides "To the fullest extent extent permitted permitted by law, [Hy-Safe] [Hy-Safe] agrees agrees to "To indemnif'y, defend defend and hold harmless harmless ... ... Owner, General General indemnify, Owner, Contractor and Architect, Architect, ... ... for, from, and against against any and all Contractor claims, demands, demands, causes causes of of action, action, damages damages . . . including, including, claims, without limitation, limitation, reasonable reasonable attorney's attorney's which without fees, which Indemnitees may at any time suffer suffer or sustain sustain or become become liable liable Indemnitees reason of: for by reason damages or injury injury either either to person person (including (including death) death) or Any damages property, including without limitation the Project or adjoining property, including without limitation Project adjoining property, in any manner manner arising arising out out of of or or relating relating to the the acts acts property, or omissions omissions of of [Hy-Safe), [Hy-Safe), its sub-subcontractors, sub-subcontractors, suppliers, suppliers, or materialmen, or anyone anyone employed employed by any of of them or and materialmen, anyone for whose whose acts they may be liable, even though though such such anyone damages or injury may have resulted from the joint, damages resulted joint, concurring, or contributory contributory act, omission, omission, or negligence, negligence, concurring, whether passive passive or active, active, ofBirdair, of Bird air, Inc., another another lndemnitee, Indemnitee, whether Page 4 of5 of5 Page 6 of 7 [* 5] INDEX NO. 156636/2016 NYSCEF DOC. NO. 252 RECEIVED NYSCEF: 12/09/2021 or any other unless such damages other person person or entity, entity, unless damages or injury injury are caused caused solely solely by the negligence negligence or willful willful misconduc misconduct t of of an Indemnite Indemniteee .... .... " (NYSCEF (NYSCEF Doc. No. 112 [emphasis [emphasis added]). added]). As makes plain, As the language language of of the Subcontra Subcontractct makes plain, Hy-Safe's obligation to indemnify indemnifY is Hy-Safe's obligation triggered by the acts or omissions Hy-Safe and this obligation triggered omissions of ofHy-Safe obligation is not altered ifsome altered if some other other party (including (including Birdair) Birdair) contribute contributess to the damages damages or injury. injury. As Hy-Safe Hy-Safe proffered proffered sufficient te, prima prima facie, facie, that it did not cause sufficient evidence evidence to demonstra demonstrate, cause or contribute contribute to the happening of plaintiff's accident and third-party happening of plaintiff s accident third-party plaintiffs plaintiffs did not not and have have not not proffered proffered any material issue of any evidence evidence to raise a material of fact on this account, account, the Court Court properly properly granted granted Motion #4 as to third-party plaintiffs' plaintiffs' claim fot Motion third-party contractual l indemnific indemnification. for contractua ation. Conclusio Conclusionn To the extent extent not specificall specificallyy addressed addressed herein, Court finds the remaining remaining herein, the Court arguments Based on the foregoing, arguments to be without without merit. Based foregoing, it is hereby hereby ORDERE ORDEREDD that that Hy-Safe's Hy-Safe's motion motion (Motion (Motion #6) to reargue reargue is granted granted and, upon upon reargument, the Court argument, Court adheres adheres to its original original decision decision and Hy-Safe's Hy-Safe's motion motion to renew renew is DENIED; DENIED; and it is further further ORDERE ORDEREDD that plaintiffs' plaintiffs' cross-moti cross-motion DENIED; and it is further further on is DENIED; ORDERE ORDEREDD that third-party third-party plaintiffs' plaintiffs' motion motion (Motion (Motion #7) to reargue reargue is granted granted and, upon re-argume nt, the Court re-argument, Court adheres adheres to its original original decision. decision . Dated:New Dated: New York, York, *w Nfw York York December December _<1_,2021 _Li_, 2021 . i ~~ ~LUBELL,J.S.C. Page Page 5 of of 5 7 of 7 .. ~

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