Opinion
Index 615335-17
06-01-2020
VIRGINIA DISTEFANO, Plaintiff, v. COUNTY OF SUFFOLK, NEW YORK, SUFFOLK COUNTY JUDICIAL FACILITIES AGENCY, SUFFOLK COUNTY DEPARTMENT OF PUBLIC WORKS and LAWRENCE VOIGTSBERGER, SUFFOLK COUNTY COMMISSIONER OF JURORS, Defendants. COUNTY OF SUFFOLK and SUFFOLK COUNTY DEPARTMENT OF PUBLIC WORKS, Third-Party Plaintiff, v. LASER INDUSTRIES, INC., Third-Party Defendant:
Unpublished Opinion
HON. DENISE F. MOLIA Judge.
Upon the following papers (I) Order to Show Cause by the third-party defendant dated April 16, 2019, and supporting papers; (2) Notice of Cross Motion by defendant/third-party plaintiff, dated June 3, 2019, and supporting papers; (3) Reply Affirmation by third-party defendant, dated June 14, 2019; (4) Affirmation in Opposition to Cross Motion by plaintiff, dated July 2, 2019, and supporting papers; (5) Reply Affirmation by defendant/third-party plaintiff, dated July 10, 2019, it is
ORDERED that the motion by the third-party defendant to dismiss the third-party complaint against them is denied (mot. seq. 002); and it is further
ORDERED the motion by defendants County of Suffolk and Suffolk County Department of Public Works seeking dismissal of the plaintiffs complaint against them (mot. seq. 003), is denied.
In the instant personal injury action, plaintiff Virginia DiStefano alleges that she fell when her left shoe became caught in a chip in the concrete curb as she was walking into the Cohalan Court Complex for her second day of Grand Jury duty. After interposing an Answer, the defendants County of Suffolk and Suffolk County Department of Public Works ("defendants/third-party plaintiffs") commenced a third-party action against third-party defendant, Laser Industries, Inc, asserting three causes of action; the first for breach of contract for failure to procure insurance for its performance of improvements to the courthouse complex at the site of the alleged incident; the second for breach of contract for failing or refusing to undertake the defense and indemnification of the plaintiffs claims and the third for common law indemnification and/or contribution. By way of Order to Show Cause, the third-party defendants now move to dismiss the action in lieu of an answer (mot. seq. 002).
The defendants/third-party plaintiffs then moved to dismiss the plaintiffs action against them based upon the fact that the County of Suffolk did not receive written notice of the alleged defective condition prior to the plaintiffs alleged injury as required by §C8-2A of the Suffolk County Charter (mot. seq. 003).
The Court first addresses the defendants' motion to dismiss the plaintiffs action against it (mot. seq. 003). "A municipality that has adopted a prior written notice statute cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies" (Mahabir v Suffolk County Water Authority, 130 A.D.3d 694, 11 N.Y.S.3d 863 [Mem][2d Dept 2015]). "Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it" (Masotto v Village of Lindenhurst, 100 A.D.3d 719, 955 N.Y.S.2d 86 [2d Dept 2012]). Preliminarily, the County defendants established that the prior written notice law still applied even if the County had a proprietary duty to maintain the sidewalk abutting the courthouse (Gebhardt v Suffolk County, 171 A.D.3d 708, 95 N.Y.S.3d 841 [Mem] [2d Dept 2019]; see also, Wittorfv City of New York, 23 N.Y.3d 474, 480 [2014]). Th*e County Defendants submitted evidence in the form of affidavits from County officials, demonstrating that no prior written notice of the alleged defect had been received (see, Albano v Suffolk County Community College, 66 A.D.3d 719, 887 N.Y.S.2d 200 [2d Dept 2009]; Tramontano v County of Suffolk, 239 A.D.2d 407, 658 N.Y.S.2d 342 [2d Dept 1997]).
Although the County defendants established, prima facie, that the plaintiff failed to comply with Suffolk County Charter §C8-2A, they failed to establish, prima facie, that they did not create the allegedly defective conditions which caused the plaintiffs fall through an affirmative act of negligence (see, Creutzberger v County of Suffolk, 140 A.D.3d 915, 33 N.Y.S.3d 438 [2d Dept 2016]; McManus v Klein, 136 A.D.3d 700, 24 N.Y.S.3d 205 [2d Dept 2016] Mahabir v Suffolk County Water Authority, 130 A.D.3d 694 11 N.Y.S.3d 863 [Mem][2d Dent 2015]). The pleading and bill of particulars in the action include allegations that the defendants (either directly or through their contractors, etc.) performed work on the handicapped ramp/apron involved in the incident, and affirmatively created the dangerous and defective condition. The County defendants' affidavits, however, are silent as to this issue (cf. DeSalvio v Suffolk County Water Auth, 127 A.D.3d 804, 7 N.Y.S.3d 331 [2d Dept 2015]; Lima v Village of Garden City, 131 A.D.3d 947, 16 N.Y.S.3d 249 [2d Dept 2015]). Since the County Defendants failed to meet their initial burden as movants, it is not necessary to review the sufficiency of the plaintiffs opposition papers (see, Creutzberger v County of Suffolk, 140 A.D.3d 915, 33 N.Y.S.3d 438 [2d Dept 2016]; Mahabir v Suffolk County Water Authority, 130 A.D.3d 694, 11 N.Y.S.3d 863 [Mem][2d Dept 2015]).
Accordingly, the cross motion by the defendants seeking dismissal of the plaintiffs complaint against them (mot. seq. 003), is denied.
The Court next turns to the motion by the third-party defendant to dismiss the complaint asserted against it by the third-party plaintiffs (mot. seq. 002). The third-party defendant contends that the third-party plaintiffs admit that Laser Industries, Inc. procured liability insurance for the benefit of the third-party plaintiffs, and to the extent that the insurer may have failed to provided coverage to the third-party plaintiff, the third-party plaintiffs must raise that issue directly with the insurer.
To succeed on a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), the documentary evidence relied upon by the defendant must "conclusively establish a defense to the asserted claims as a matter of law" (Guayara v Harry J. Katz, P.C., 83 A.D.3d 661, 920 N.Y.S.2d 401 [2d Dept 2011], citing Leon v Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972 [1994]). When determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), "the standard is whether the pleading states a cause of action," and "the court must 'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" (Soto/viearfe/% 74 A.D.3d 1180, 904 N.Y.S.2d 153 [2d Dept 2010]).
Here, the third-party defendant failed to conclusively establish its defense to the third-party plaintiffs claims. In the third-party complaint, the third-party plaintiff alleges that Laser Industries, Inc., as the Contractor, was required to secure the proper insurance for its performance of improvements to the Cohalan Courthouse Complex. The complaint attaches the Certificate of Liability listing the County of Suffolk as an Additional Insured. Laser Industries, Inc. argues that this is a concession or proof that it fulfilled its obligation to procure insurance and as such, the first cause of action asserted in the complaint should be dismissed. A Certificate of Liability Insurance stating that it "confers no rights upon the certificate holder," however, is insufficient to conclusively demonstrate the existence of the alleged insurance coverage (see, Binyan Shel Chessed, Inc. v Goldberger Ins. Brokerage, Inc., 18 A.D.3d 590, 795 N.Y.S.2d 619 [2d Dept 2005]; see also, Tribeca Broadway Associates, LLC v Mount Vernon Fire Ins. Co 5 A.D.3d 198, 774 N.Y.S.2d 11 [1sl Dept 2004]["A certificate of insurance is only evidence of a carrier's intent to 'provide coverage but is not a contract to insure the designated party nor is it conclusive proof, standing alone, that such a contract exists"]).
Additionally, with respect to the second and third causes of action, the third-party defendant fails to establish that it is not required to indemnify the third-party plaintiff. "A party is entitled to full contractual indemnification provided that the 'intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances'" (Kennelty v Darlind Constr., 260 A.D.2d 443, 688 N.Y.S.2d 584 [2d Dept 1999] quoting Drzewinski v Atlantic Scaffold & Ladder Co., 70 N.Y.2d 774, 777 [1987]). the third-party defendant fails to sufficiently address the effect of the indemnification provisions contained within the bid request and also fails to eliminate questions of fact regarding the responsibility for the construction site, which give rise to the plaintiffs claim for common law indemnification (see, Masciotta v Morse Diesel Intl., 303 A.D.2d 309, 758 N.Y.S.2d 286 [1st Dept 2003]; Kennelty v Darlind Constr., 260 A.D.2d 443, 688 N.Y.S.2d 584 r2d Dept 1999]).
Specifically, section G.I. 3 "Indemnification of the Owner and Engineer" states: "A. Except for the Owner's and/or Engineer's own negligent acts, the Contractor shall pay and make good all losses and damages arising out of all causes connected with the Contract, and shall indemnify, defend and save harmless the Owner and Engineer from al! claims, liability, and responsibility, of every nature and kind for losses, damages and injuries, which any person or persons may sustain or suffer by reason of or any way arising out of the Contract."Additionally, "Exhibit A-Instruction to Bidders and General Specifications To Be Complied With Where Applicable" states:
"13A. Indemnification and Defense. The Contractor shall protect, indemnify and hold harmless the County, its officers, officials, employees, Contractors, agents, servants and other persons from and against all liabilities, fines, penalties, actions, damages, claims, demands, judgments, losses, costs, expenses, suits or actions and reasonable attorneys' fees, caused by the acts or omissions or the negligence of the Contractor incurred by the County, its officers, officials, employees, Contractors, agents, servants 4d ofr 4sons in any action or proceeding arising
Accordingly, the motion by third-party defendant Laser Industries, Inc. seeking dismissal of the third-party complaint against it (mot. seq. 002), is denied.