Opinion
Index 156720/2018
03-30-2022
MAGGIE ALSULTANY, Plaintiff, v. BROOKFIELD PROPERTIES OLP CO. LLC and MULLIGAN SECURITY CORP., Defendants. BROOKFIELD PROPERTIES OLP CO. LLC, Third-Party Plaintiff, v. MULLIGAN SECURITY CORP., Third-Party Defendant. BROOKFIELD PROPERTIES OLP CO. LLC, Second Third-Party Plaintiff, v. WAGER CONTRACTING CO., INC., and ALL NU ELECTRICAL CONTRACTING CORP., Second Third-Party Defendants. BROOKFIELD PROPERTIES OLP CO. LLC, Third Third-Party Plaintiff, v. SECUREUSA, INC., and GUARDIAR SOLUTIONS INC., Third Third-Party Defendants. Second Third-Party Index No. 595273/2020 Third-Party Index Nos. 595232/2019, 595317/2020
Unpublished Opinion
MOTION DATE 07/21/2020, 08/17/2020, 08/18/2020, 09/25/2020, 12/10/2020, 12/15/2020
PRESENT: HON. LOUIS L NOCK Justice
DECISION + ORDER ON MOTION
HON. LOUIS L NOCK, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64. 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 139, 140, 141, 142, 143, 144, 145, 146, 289 were read on this motion for DISMISSAL.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 131, 132, 133, 134, 147, 148, 149, 150, 151, 155, 156, 157, 158, 159, 160 were read on this motion to VACATE/STRIKE-NOTE OF ISSUE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 126, 127, 128, 129, 130, 135, 136, 137, 138, 152, 153, 154 were read on this motion to VACATE/STRIKE-NOTE OF ISSUE
The following e-filed documents, listed by NYSCEF document number (Motion 004) 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 241, 244, 245, 246, 247, 248, 249, 280, 281, 282, 285, 286, 287, 288 were read on this motion for JUDGMENT-SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 220, 221, 222, 223, 224, 242, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 283 were read on this motion to SEVER ACTION.
The following e-filed documents, listed by NYSCEF document number (Motion 006) 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 243, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 284 were read on this motion to SEVER ACTION. LOUIS L. NOCK, J.
Upon the foregoing documents, it is ordered that the foregoing motions are consolidated for disposition and determined as follows.
Background
This is a personal injury action involving the crushing of plaintiff s left foot allegedly caused by the wedge plate of a vehicle barrier system ("VBS") owned by defendant Brookfield Properties OLP Co., LLC, and situated in connection with Brookfield's property at 165 Broadway, a/k/a 1 Liberty Plaza, in Manhattan, immediately adjacent to and part of the sidewalk (see, Brookfield Incident Report and NYPD Police Report). A VBS is a security system designed to stop and disable a vehicle attacking a secured perimeter and also provides access entering or exiting a facility.
Defendant Mulligan Security Corp. was allegedly in charge of performing security services at the aforementioned premises. The Third-Party Complaint asserts claims by Brookfield for contractual and common law indemnification and contribution against Mulligan, as well as breach of agreement to procure liability insurance.
Second Third-Party Defendants Wager Contracting Co., Inc., allegedly entered into an agreement with Brookfield to install the VBS. All Nu Electrical Contracting Corp. allegedly entered into an agreement with Brookfield to furnish labor and materials in connection with said installation. The Second Third-Party Complaint asserts claims by Brookfield for contractual and common law indemnification and contribution against Wager and All Nu, as well as breach of agreement to procure liability insurance.
Third Third-Party Defendant SecureUSA, Inc., now known as Guardiar Solutions, Inc. ("Guardiar"), allegedly supplied equipment in connection with the VBS. The Third-Third Party Complaint asserts claims by Brookfield for contractual and common law indemnification and contribution against Guardiar, as well as breach of agreement to procure liability insurance.
Motion Seq. Nos. 001, 005, and 006 (Motions to Dismiss or Sever the Third Party Actions)
Guardiar moves to dismiss the Third-Third Party Complaint pursuant to CPLR 3211 (a) (1) (documentary evidence), or to sever the third-third party action pursuant to CPLR 603.
Dismissal on grounds of documentary evidence is "warranted only if the documentary evidence submitted utterly refutes plaintiffs factual allegations and conclusively establishes a defense to the asserted claims as a matter of law" (Amsterdam Hospitality Group, LLC v Marshall-Alan Assocs., Inc., 120 A.D.3d 431, 433 [1st Dept 2014]). Plaintiffs Third Supplemental Bill of Particulars and Expert Disclosure Pursuant to CPLR § 3101 (d) both allege that the cause of the injury was due to the alleged fact that the VBS was not properly installed. The documentary evidence relied upon by Guardiar includes an NYPD Police Report, an Equipment-Only Quote from Guardiar making no mention of installation, and the Sales Order for said Equipment-Only Quote making no mention of installation. Guardiar further relies on a provision in the Equipment-Only Quote excluding indemnification claims stemming from installation and operation of equipment. However, neither the Equipment-Only Quote or the Sales Order for the Equipment-Only Quote utterly refute the possibility that Guardiar actually installed the VBS. Nowhere in those documents is it indicated that Guardiar did not, in fact, perform, or otherwise participate in, the installation of the VBS. Indeed, Brookfield submits an email communication from Gregory R. Wager on March 23, 2020 (NYSCEF Doc. No. 85), stating:
Wager is listed as the vendor responsible for installing the barrier. However, Wager only handled the removal of the old bollards and prepping the area for the new barricade. The vendor that the barricade was purchased from He.. Guardiar] handled the physical install.(Emphasis added.) Therefore, dismissal on the sole basis of the absence of an express installation line item in the Equipment-Only Quote or the related Sales Order cannot be had, as discovery would need to go forward in ascertaining whether or not Guardiar actually was involved in installation, apart from just furnishing, of the VBS.
Guardiar points to language in the Equipment-Only Quote providing that: "SecureUSA's indemnification and hold harmless obligations to indemnitee hereunder terminates once the customer signs off and accepts beneficial use of the systems" (NYSCEF Doc. No. 72 at 4 of 4).
But the Equipment-Only Quote (NYSCEF Doc. No. 72) adds the following clause: "SecureUSA's indemnification is limited to 3 party claims and for personal injury and tangible property damage, to the extent caused by the negligence of SecureUSA." Because it remains to be seen whether Guardiar (f/k/a SecureUSA) was involved in installation of the VBS, the documents relied upon by Guardiar as a basis for dismissal do not "utterly refute[]" Brookfield's claims for indemnification and contribution (Amsterdam Hospitality Group, LLC, supra).
Dept 2013]; Gabriele v Edgewater Park Owners Coop. Corp., Inc., 67 A.D.3d 484 [1
Insofar as the motion relies on the NYPD Police Report (NYSCEF Doc. No. 136) and the Mulligan Security Guard Service Agreement (NYSCEF Doc. No. 14), for the notion that the accident was caused by faulty area monitoring by Mulligan area security personnel, their contents similarly do not "utterly refute[]" the possibility that Guardiar installed the VBS in a faulty manner, or that the VBS itself was faulty in its operation.
Guardiar makes a haphazard attempt at arguing that the Third Third-Party Complaint fails to state causes of action (CPLR 3211 [a] [7]). Such attempt fails under the rule that a CPLR 3211 (a) (7) motion "must be denied if from the pleadings' four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 N.Y.2d 144, 152 [2002]). The pleading here alleges facts to the effect that Guardiar would be liable to Brookfield under alternative theories of contractual or common law indemnification or contribution.
Guardiar (seq. no. 001), Wager (seq. 005), and All Nu (seq. 006) all move for severance of Brookfield's third-party actions on the common argument that Brookfield delayed in bringing them at a stage of this litigation where discovery has been thoroughly engaged in as between the parties to the case-in-chief (see, e.g., Torres v Visto Realty Corp., 106 A.D.3d 645 [1st Dept 2013]; Whippoorwill Hills Homeowners Assn., Inc., v Toll at Whippoorwill, L.P., 91 A.D.3d 864 [2d Dept 2012]; Ambriano v Bowman, 245 A.D.2d 404, 405 [2d Dept 1997] ["The third-party plaintiff unduly delayed in commencing the third-party action, the parties in the main action have substantially completed their discovery, and would be prejudiced by the delay necessary to allow the third-party defendants to engage in discovery."]; Cusano v Sankyo Seiki Mfg. Co., Ltd., 184 A.D.2d 489 [2d Dept 1992]). Plaintiff concurs with such a measure. CPLR Rule 1010 provides that "a separate trial of the third-party claim or of any separate issue thereof can occur based on a consideration "whether the controversy between the third-party plaintiff and the third-party defendant will unduly delay the determination of the main action . . . ." At the time the second third-party action was commenced on March 16, 2020, virtually all discovery in the case-in-chief was complete. Naturally, by the time the third third-party action was commenced on May 14, 2020, said discovery was still complete. Brookfield has presented no sufficient reason for its delay in filing those third-party actions - essentially upon the eve of plaintiff s filing of the note of issue. Moreover, to any extent that Brookfield claims to have discovered new information, it should have sought leave of the court to file a belated third-party action, which it did not do. It would be highly prejudicial to force the plaintiff to recommence all the discovery it had gone through and completed in what was, and still is, a trial-ready case with regard to the case-in-chief (and first third-party action involving parties to the case-in-chief). The posture here is similar to that of Lombardi v Structure Tone, Inc. (118 A.D.3d 512 [1Dept 2014]), where the Appellate Division, First Department, affirmed the severance of a late-coming third-party action when the case-in-chief was trial-ready; but discovery was still outstanding in the third-party action. The Appellate Division in that case held that "Plaintiff would be substantially prejudiced by a long delay if compelled to await completion of disclosure in the . . . third-party action" (id.).
Dept 2009]).
Based on the procedural posture of this case, where discovery is, for all intents and purposes, completed in the case-in-chief, the court concurs and exercises its discretion in severing the second and third third-party actions pending disposition of the case-in-chief (and first third-party action, involving only the parties in the case-in-chief).
Motion Seq. Nos. 002 and 003 (Motion to Vacate the Note of Issue)
Brookfield and Mulligan move to vacate the note of issue filed by plaintiff Alsultany. Brookfield points out that plaintiffs note of issue was filed - albeit in compliance with the filing deadlines in effect at that time, on July 29, 2020 - before plaintiff served her Fifth Supplemental Bill of Particulars on or about August 5, 2020.
As plaintiffs counsel points out, though: discovery has proceeded in a most thorough fashion on plaintiffs part, to the extent of comprehensive document production, IMEs, and two depositions of the plaintiff (see, NYSCEF Doc. No. 131 ¶ 20). The last deposition in the case-in-chief was November 7, 2019. By the time Brookfield commenced the first of the third-party actions, on March 16, 2020, all discovery had been completed. That continued to be the case as of the time Guardiar commenced its third-party action on May 14, 2020. To prolong the causes of action further by striking the note of issue at this late date and, thereby, placing the plaintiff at the end of the queue for trial would cause undue prejudice. This observation is especially forceful in light of the immediately preceding holding of this court granting severance of the second and third third-party actions (supra). No further need exists at this time to re-open discovery now that the case-in-chief is trial-ready. Accordingly, the court, in the exercise of discretion, denies the motions to strike plaintiffs note of issue.
Motion Seq. No. 004 (Motion for Summary Judgment to Dismiss Claims Against Brookfield)
Brookfield asserts that deposition testimony of plaintiff revealed that plaintiff was self-distracted by talking on her cell phone and not paying attention to her surroundings on the day she was allegedly injured by the VBS being lowered onto her foot. It is also asserted that video evidence, confirming the foregoing, also confirms that the VBS operator (Mulligan) was actively observing the plaintiff at the time of the incident (see, NYSCEF Doc. No. 165 ¶ 37).
However, as plaintiffs counsel points out, Brookfield caused the VBS to be installed in the first place. A part of plaintiff s case focuses on the factual assertion that the VBS was defective for not having any warning lights, sound alarms, or other indicators alerting pedestrians that the device was in play and being lowered (see, NYSCEF Doc. No. 210 ¶ 27). Indeed, Brookfield, as the owner of the property that was served by the VBS, bears a duty to maintain the property in a reasonably safe condition and bears liability for not removing material from the sidewalk that was negligently not removed (see, Administrative Code of the City of N.Y. § 7-210). Interference with pedestrian safety is covered by the foregoing rule (see, Doyley v Steiner, 107 A.D.3d 517 [1
As for the assertion that plaintiff was self-distracted - such assertion remains for a jury to assess and cannot be considered by the court alone on a motion for summary judgment. Similarly, the court cannot grant plaintiffs cross-motion for summary judgment on liability as to Brookfield and Mulligan because their liability will also depend on a jury's assessment of the circumstances underlying this incident, even considering the fact that a video recording submitted on this motion practice is purported by counsel to be conclusive of any and all material facts in this case. Therefore, the motion and cross-motion are denied.
Accordingly, it is ORDERED that the prong of motion sequence nos. 001, 005, and 006 to dismiss the second and third third-party actions is denied; and it is further
ORDERED that the prong of motion sequence nos. 001, 005, and 006 to sever the second and third third-party actions is granted, and that said third-party actions shall await disposition of the case-in-chief and first third-party action; and it is further
ORDERED that motion sequence nos. 002 and 003 to vacate the note of issue are denied; and it is further
ORDERED that motion sequence no. 004 for summary judgment dismissing the claims against Brookfield is denied.
This will constitute the decision and order of the court.