ADDITIONAL CASES 33-02 30th Avenue LLC., Third Party Plaintiff v. Cantral Builder Development Corp. and Midtown Green Construction Inc., Third-Party Defendants Central Builders’ Development Corp., Second-Third Party Plaintiff v, Midtown Green Construction Inc., Second-Third Party Defendants Midtown Green Construction Inc., Forth Party Plaintiff v. Van Deroche, Fourth Party Defendant This matter was originally assigned to Part 32 and was reassigned to the undersigned in October 2023. The following electronically filed documents (E) numbered E262-E281, E308-E322, E324, E330-E334, E338, E341; and E285-E307, E323, E325-E329, E336-337, E339, E342 read, by Defendant/Third-Party Plaintiff 33-02 30th Avenue LLC for an order: (1) pursuant to CPLR §3212 granting partial summary judgment to Defendant/Third-Party Plaintiff, 33-02 30th Avenue LLC, dismissing Plaintiff’s causes of action for common law negligence and violation of Labor Law §200; (2) dismissing all crossclaims and counterclaims against it;1 (3) and granting summary judgment on its Third-Party complaint against Third-Party Defendants, Central Builders Development Corp. and Midtown Green Construction Inc., declaring that these parties are obligated to defend and indemnify 33-02 30th Avenue LLC pursuant to a written contract, as well as to reimburse 33-02 30th Avenue LLC, for all fees, disbursements and costs incurred in the defense of this action (Motion Seq.#7); and the motion by Third-Party Defendant/Second Third-Party Defendant/Fourth Party Plaintiff, Midtown Green Construction, for an order: (1) pursuant to CPLR §3212 granting summary judgment to Third-Party Defendant/Second Third-Party Defendant/Fourth Party Plaintiff, Midtown Green Construction, and dismissing both the Third-Party Plaintiff, 33-02 30th Avenue LLC’s, and Second-Third-Party Plaintiff, Central Builders Development Corp.’s, complaints in their entirety (Motion Seq.#8). For the reasons that follow, motion sequence No. 7 is granted in its entirety. Motion Sequence No. 8 is denied in its entirety. PAPERS NUMBERED MOTION SEQUENCE #7 Defendant/Third-Party Plaintiff’s Notice of Motion, Statement of Material Facts, Affirmations in Support, Exhibits E261-E279 Affirmation in Opposition E308 Response to Statement of Material Facts E309 Affirmation in Opposition to Motion w/Exhibits E310-E313 Affirmation in Partial Opposition E314 Response to Statement of Material Facts E315-E321 Response to Statement of Material Facts E322 Affirmation in Reply E330 Affirmation in Reply E331 Affirmation in Reply E332 Memorandum of Law in Opposition E334 Memorandum of Law in Support E338 Memorandum of Law E341 MOTION SEQUENCE #8 Third-Party Defendant/Second Third-Party Defendant/Fourth Party Plaintiff Notice of Motion, Affirmation in Support, Exhibits E285- E307 Affirmation in Opposition E325 Affirmation in Opposition E326 Affirmation in reply w/Exhibits E327-329 Memorandum of Law E336 Memorandum of law in Opposition E339 Memorandum of Law in Opposition E343 DECISION AND ORDER Upon the foregoing papers, motion sequence 7 & 8 are consolidated for decision and order. PROCEDURAL HISTORY This action arises out of an incident involving Plaintiff, Widme Lucero (“Lucero” hereinafter), on June 29, 2019, when, while performing work as an employee of Midtown Green Construction (“Midtown” hereinafter), at a construction/renovation site located at 33-02 30th Avenue, Queens, New York (“subject property” hereinafter), Lucero was injured. Lucero commenced this claim alleging negligence, and violation of Labor Law §§200, 240 and 241(6).2 It is undisputed that the accident occurred when Lucero was polishing the concrete floor of the subject property with a helicopter machine when he fell through an opening in said floor, causing him to fall approximately twelve (12) to fifteen (15) feet to the ground floor of the property.3 It is further undisputed that the subject property was owned by 33-02 30th Avenue, LLC (“33-02″ hereinafter)4 and that prior to the alleged accident, 33-02 had entered into a contract with Central Builders Developers Corp. (“Central” hereinafter) where Central would act as the general contractor for the work5 and as such, would be responsible for the entire scope of the work and supervise the project. The contract also called for Central to defend and indemnify 33-02 for all claims arising out of the construction project.6 Such contract enabled Central, as General Contractor, to hire subcontractors as it deemed necessary. Accordingly, 33-02 and Central contracted Midtown to perform all cement work at the subject property. Under the terms of that contract, Midtown was responsible for the entire scope of its work and to supervise the work. The contract also called for Midtown to indemnify both Central and 33-02.7 Central admits that MetLife, their insurance carrier, received and accepted 33-02′s tender without any reservation of rights.8 However, Central argues that 33-02′s own actions frustrated and prevented Central’s ability to perform their contractual obligation by failing to provide and transfer their file to MetLife upon demand. Midtown, the subcontractor, admits working at the subject property on the day of the accident and that Lucero was their employee. However, it denies having signed a contract or ever discussing any indemnification obligations towards Central and 33-02.9 Rather, Midtown alleges that any conversation between the parties occurred solely in the context of negotiating the construction project; namely cost and payment schedules. Midtown further contends that although operational since 2012 and being certified by the Occupational Safety and Health Administration (“OSHA” hereinafter), in addition to contractual work, it provided services without signed contracts between 2012 and 2018.10 Midtown argues that because a contract was never signed, as Lucero’s employer, it cannot be held liable for Lucero’s injuries since he has failed to establish “grave injury” pursuant to Worker’s Compensation Law §11. ANALYSIS 33-02′s SUMMARY JUDGMENT MOTION When deciding a summary judgment motion, the Court must “determine whether material factual issues exist, not to resolve such issues.” Lopez v. Beltre, 59 A.D.3d 683, 685 (2nd Dept. 2009); Santiago v. Joyce, 127 A.D.3d 954 (2nd Dept. 2015). As such, to succeed on a summary judgment motion, “it must clearly appear that no material and triable issue of fact is presented….” Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957); see also Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1978); Andre v. Pomeroy, 35 N.Y.2d 361 (1974); Stukas v. Streiter, 83 A.D.3d 18 (2nd Dept. 2011); Dykeman v. Heht, 52 A.D.3d 767 (2nd Dept. 2008). Further, summary judgment should not be granted where there is an “arguable” issue of fact. Id. A court should not grant a summary judgment motion where “‘facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.’” Collado v. Jiacono, 126 A.D.3d 927, 928 (2nd Dept. 2015) (quoting Scott v. Long Is. Power Auth., 294 A.D.2d 348, 348 [2nd Dept. 2002]); see Chimbo v. Bolivar, 142 A.D.3d 944 (2nd Dept. 2016); Bravo v. Vargas, 113 A.D.3d 579 (2nd Dept. 2014). Should the moving party fail to show the absence of a triable issue of material fact, the motion for summary judgment must be denied. See Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966 (1988); Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985). To successfully argue for summary judgement, the proponent of said motion “‘must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.’” Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063 (1993) (quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]). Once the proponent has made a prima facie showing, the burden then shifts to the party opposing the motion to produce evidence sufficient to establish the existence of a triable issue of material fact. See Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). I. Partial Summary Judgment Dismissing Lucero’s First and Second Causes of Action for Common Law Negligence and Statutory Liability Under Labor Law §200. Lucero concedes that 33-02 did not supervise the means and methods of the work at the subject premises. However, he partially opposes 33-02′s summary judgment motion arguing there exists a triable issue of fact as to whether 33-02 had either actual or constructive notice of the dangerous conditions presented at the subject property the day of the alleged accident. To support his position, he argues that 33-02′s agent, Mr. Kourkoumelis (“Owner” hereinafter) visited the subject premises the night before and the morning of the date of the accident,11 providing the owner with ample time and opportunity to correct such dangerous conditions, regardless of their lack of supervision. See e.g., Wynne v. State, 53 A.D.3d 656, 853 N.Y.S.2d 222 (2nd Dept. 2008). Lucero further argues that because OSHA issued violations to Midtown after the accident,12 due to existent dangerous conditions at the subject premises, 33-02 had actual and/or constructive notice of the condition when its owner visited the property prior to the accident. Although 33-02 does not contest the visits, it argues that the morning of the accident, the owner witnessed the same fall protection observed by Lucero in place prior to his fall.13 Therefore, it is 33-02′s position that Lucero’s actual or constructive notice claim fails as Lucero’s main complaint was improper safety measures which at the time was under the supervision and control of Midtown14 and that this failure was not readily discernable by 33-02′s owner’s quick visits, who is not familiar with OSHA rules and regulations. In the alternative, 33-02 contends that as a matter of law, liability cannot attach since “…[a]ny mesh that might have been present failed to protect Plaintiff from falling through any such mesh and into the hole 12-17 feet to the ground below,”15 and such open and obvious condition was readily observable by the reasonable use of one’s senses and not inherently dangerous (See, Ulrich v. Motor Parkway Props., LLC. 84 A.D.3d 1221, 1223, 954 N.Y.S.2d 493 [2011]), or that Lucero cannot simply identify the cause of the fall, without engaging in speculation. See Steinsvaag v. City of New York, 96 A.D.3d at 933; Bolde v. Borgata Hotel Casino & Spa, 70 A.D.3d 617, 618, 892 N.Y.S.2d 892 [2010]; Costantino v. Webel, 57 A.D.3r at 472). To support its position, 33-02 relies on Lucero’s own testimony and pleadings. In his Examination Before Trial (“EBT” hereinafter) Lucero testified that he was working at the subject property for a total of three (3) days including the day of the accident. He also testified that he witnessed, on the day of the accident and upon his arrival “…[c]ables between the four columns, and there was a mesh, like a red tomato-colored mesh.”16 Lucero then explained that the mesh was held by metal cables onto the iron columns and that it surrounded the opening. However, he noticed at one point the cables and mesh gone but continued to work. This Court finds that Lucero failed to raise a triable issue of fact as to whether 33-02 had actual or constructive notice of a dangerous condition, namely that the protective mesh attached with cables to four iron columns surrounding the floor opening, absent its removal, would have protected Lucero from falling into the opening. Accordingly, the branch of 33-02 summary judgment seeking dismissal of Lucero’s first cause of action sounding in negligence against 33-02 and second cause of action sounding in violation of Labor Law §200 causes of actions is GRANTED. II. Summary Judgment against Central Pursuant to a Written Contract It is undisputed that 33-02 and Central entered into a contract and that MetLife accepted 33-02′s tender to defend and indemnify without any reservation of rights.17 However, Central argues that 33-02 frustrated its ability to perform their obligation under the contract when 33-02 failed to complete full transfer of the files and that “[w]here liability under a contract depends upon a condition precedent one cannot avoid liability by making the performance of the condition precedent impossible, or by preventing it.” See, Lindenbaum v. Royco Property Corp., 165 A.D.2d 254, 260 [2nd Dept.1991 (quoting Gulf Oil Corp. v. American La. Pipe Line Co., 282 F.2d 401 [6th Circuit Court of Appeals 1960])]. Central further opposes 33-02 unlimited reimbursement of defense costs, arguing cost is limited from March 11, 2019, the date in which tender was received.18 See, Bovis Lend Lease LMB, Inc., v. Royal Surplus Lines Ins. Co., 27 A.D.3d 84[1st Dept. 2005]). Notwithstanding, it is Central’s position that they remain ready, willing, and able to defend and indemnify 33-02.19 33-02 argues that Central has not provided any evidence to prove 33-02 frustrated Central’s ability to perform, but rather that Central’s only contention is one of coverage which is outside the scope of the instant motion..20 Namely, whether MetLife was obligated to also accept the owner’s21 defense and to reimburse all cost incurred, as well as whether Central’s excess carrier, Chubb, is willing to assume indemnity on a primary and non-contributory basis.22 This Court finds that Central shall abide by their contractual indemnification obligations. Here the contract included a clear and unambiguous indemnification clause; tender was rendered and accepted by Central’s insurance carrier, MetLife, to defend and indemnify 33-02 and must proceed accordingly. All disputes concerning coverage raised by Central fall outside this motion. Accordingly, that branch of 33-02′s motion for summary judgement against Central for contractual indemnification is GRANTED. III. Summary Judgment against Midtown Pursuant to a Written Contract It is undisputed that Midtown, on the day of the accident, was performing the cement work tasked to complete and that Lucero, was indeed its employee. It is further undisputed that Midtown was not new to the construction industry, having been operational since 2012 and, since its inception, provided services pursuant to written as well as oral agreements.23 Here, Midtown denies signing a contract with 33-02 and Central, ever seeing a proposed contract or discussing or considering any type of indemnification.24 Midtown does concede having engaged in discussions with Central and 33-02, solely for the purpose of negotiating the work, cost, and payment plan.25 Midtown relies on Wright v. Ford Motor Co., 111 A.D.2d 810, 811 (2nd Dept. 1985 [citing Bronn Bros. Elec. Contractors v. Beam Constr. Corp., 41 N.Y.2d 397, 399 (1977)]), which stands for the proposition that a binding contract is not dependent on the parties subjective intent, but rather on their objective display of their intent by their expressed words and deeds. Midtown argues that both Central and 33-02 simply submitted self-serving testimony to support the existence of a contract and failed to produce a signed contract. Lastly, Midtown contends that Lucero was its employee, and any duty to indemnify would have to undergo a stricter analysis as laid out under Workers Compensation Law §11.26 However, it is undisputed that Midtown secured and provided Certificates of Liability Insurance, dated June 28. 2018, naming both 33-02 and Central as additional insured parties.27 In its defense, 33-02 claims that Midtown took the only signed copy and refused to return it upon demand.28 Accordingly, it is 33-02′s contention that Midtown’s actions provided the surrounding facts and circumstance, namely securing insurance, signing a contract, performing the work, accepting payment, and providing workers, intended to indemnify 33-02 and Central. See e.g., Drzewinski v. Atlantic Scaffold & Ladder Co. Inc.,70 N.Y.2d 774,777, 521 N.Y.S.2d 216 (1987); Masciotta v. More Diesel International Inc., 303 A.D.2d 309, 758 n>y>S.2d 286 [1st Dept. 2003]). Lastly, 33-02 argues that the contractual provisions “arising out of” and “resulting from” were triggered as Lucero was injured in the course of performing the same work and services Midtown was subcontracted to perform. (See, Brown v. Two Exchange Plaza Partners, 76 N.Y.2d 172, 178, 556 N.Y.2d 172, 178, 556 N.Y.S.2d 991, 994 [1990]). The Court finds a valid contract. Midtown’s actions, given the surrounding facts and circumstances, established an objective intent for the parties to enter into a binding agreement, signed or not. Thus, the branch of 33-02 seeking summary judgment against Midtown for contractual indemnification is GRANTED. MIDTOWN’S SUMMARY JUDGMENT MOTION Midtown moves for summary judgment against 33-02 and Central on their claim of contractual indemnification. It argues that because nothing was reduced to a writing and signed, there was no meeting of the minds. See, DCR Morgt. VI Sub. I, LLC v. Peoples United Financial, Inc., 148 A.D.3d 986, 987 (2nd Dept. 2017) (“To form a binding contract there must be a meeting of the minds, such that there is a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms.”). Accordingly, and pursuant to Worker’s Compensation Law §11 it is Midtowns position that, “…an owner [can] bring a third-party claim against an injured worker’s employer in only two circumstances: where the injured worker has suffered a “grave injury” or the employer has entered into a written contract to indemnify the owner.” See Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363, 369 (2005) at 360. In this instance, Midtown’s reliance on Flores is misplaced. There, the Court of Appeals held that “…[t]he common-law rule — which authorizes reviews of the course of conduct between the parties to determine whether there was a meeting of the minds sufficient to give rise to an enforceable contract- governs the validity of a written indemnification agreement under Workers Compensation Law §11.” Id at 370. Based on the evidence presented this Court finds a valid contract. Midtown demonstrated intent to be bound by the terms of the contract by its own actions when it obtained and provided a copy of the Certificate of Liability Insurance, dated June 28, 2018, naming both 33-02 and Central as additional insured parties. Therefore, any analysis concerning Midtown’s allegation that Lucero failed to establish a “grave injury” is moot and unnecessary as one of the exceptions delineated by Workers’ Compensation Law §11 allowing an owner to bring a claim against a worker’s employer has been met. Midtown’s summary judgement motion is DENIED in its entirety. Accordingly, it is hereby, ORDERED, that 33-02′s motion for summary judgment its GRANTED in its entirety; and it is further ORDERED, that Midtown summary judgment motion is DENIED in its entirety. Any relief sought not address herein its DENIED. This constitutes the Decision and Order of the Court. Dated: June 21, 2024
