Opinion
Index No. 510605/2017 Motion Seq. 12 13
07-12-2022
SHERZOD RAHMONOV, Plaintiff. v. PURVES DEVELOPMENT LLC, SILVERCUP PROPERTIES LLC, S2 CONSTRUCTION LLC and P-GOOM, INC., Defendants. PURVES DEVELOPMENT LLC, SILVERCUP PROPERTIES LLC and S2 CONSTRUCTION LLC, Third-Party Plaintiffs, v. V&P ALTITUDE CORP. and P-GOOM, INC., Third-Party Defendants. PURVES DEVELOPMENT LLC, SILVERCUP PROPERTIES LLC and S2 CONSTRUCTION LLC, Second Third-Party Plaintiffs, v. CONSTRUCTION FORCE SERVICES and VALLX ENTERPRISES, INC., Second Third-Party Defendants.
Unpublished Opinion
PRESENT: CARL J. LANDICINO, J.S.C.
DECISION AND ORDLR
CARL J. LANDICINO, JUDGE
Recitation, as required by CPLR 2219(a), of the papers considered in review of this motion:
Papers Numbered (NYSCEF)
Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed.................................................................. 280-282, 284-294, 295-307,
Opposing Affidavits Affirmation....................................................................... 338-339, 340-342,
Reply Affidavits (Affirmations)........................................................................344-345, 346,
Memorandum of Law........................................................................................ 283, 308, 343, 347
After a review of the papers and oral argument the Court finds as follows:
Plaintiff Sherzod Rahmanov (hereinafter the "Plaintiff) alleges causes of action pursuant to New York State Labor Law 200, 240(1), 241, 242-(a) and common law negligence as against Defendants Purves Development PLC. Silvercup Properties. LLC. S2 Construction. LLC and P-Goom. Inc. Plaintiff alleges in his Verified Bill of Particulars that on January 23, 2017. he suffered injuries alter he tripped and fell over debris while working for "V&P Altitude/Monanchock Construction, Inc." at 27-21 44th Drive, Long Island City, New York (the "Premises").
Third-Party Defendant V&P Altitude Corp. (hereinafter "V&P") moves (motion sequence #12) for an order, pursuant to CPLR 3212, for summary judgment dismissing the third-party action for common law and contractual indemnification, contribution and breach of contract and any cross-claims. V&P contends that summary judgment should be granted as the Plaintiff was an employee of V&P at the time of the alleged accident and the Workers' Compensation Reform Act bars any claims as against V&P. Moreover, V&P contends that it was contracted to work at the Premises by non-party Pioneer Window Manufacturing Corp. (hereinafter "Pioneer"), and as a result only Pioneer may maintain a viable contractual indemnity claim as against V&P.
Defendants/Third-Party Plaintiffs/Second Third-Party Plaintiffs, Purves Development LLC and Silvercup Properties LLC, (hereinafter referred to individually or as the "Defendant Owners") and S2 Construction LLC ("Defendant GC") oppose the motion. The Defendant Owners and GC contend that both the contract between Defendant S2 Construction and Pioneer, and the contract between Pioneer and V&P, explicitly state that indemnification will he provided to the Defendant Owners and GC. The Defendant Owners and GC argue that the contract between Pioneer and V&P states that V&P has agreed to assume liability incurred by the Owners and GC for claims that arose out of V&P's activity at the Premises.
The Defendant Owners and GC also move (motion sequence #13) for an order pursuant to CPLR 3212 for summary judgment on their Third Cause of Action for Contractual Indemnification and Fourth Cause of Action for Breach of Contract (failure to procure insurance) against V&P. As stated above, the Defendant Owners contend that both the contract between Defendant S2 Construction and Pioneer and the contract between Pioneer and V&P should be read in broad terms to provide that V&P had a contractual duty to indemnify and procure insurance for the Defendant Owners and GC.
V&P opposes the motion. As staled above, V&P argues that it is not contractually obligated to any other party other than Pioneer. Specifically, V&P argues that it only contracted with Pioneer and that contract is silent to the Defendant Owners and GC.
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it "should only be employed when there is no doubt as to the absence of triable issues of material fact." Kolivas v. Kirchoff, 14 A.D.3d 493, 787 N.Y.S.2d 392 [2d Dept 2005]. citing Andre v. Pomeray, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 1341 [1974], The proponent for summary judgment 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. See Sheppard-Mobley v. King, 10 A.D.3d 70, 74, 778 N.Y.S.2d 98 [2d Dept 2004]. citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 [1986], Winegrad v. New York Univ. Med Ctr. 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316 [1985], "In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inference must be resolved in favor of the nonmoving party." Adams v. Bruno, 124 A.D.3d 566, 566, 1 N.Y.S.3d 280, 281 [2d Dept 2015] citing Valentin v. Parish, 119 A.D.3d 854, 989 N.Y.S.2d 621 [2d Dept 2014]; Escobar v. Velez, 116 A.D.3d 735, 983 N.Y.S.2d 612 [2d Dept 2014].
Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing part)' to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" Garnham & Han Real Estate Broken v. Oppenheimer, 148 A.D.2d 493, 538 N.Y.S.2d 837 [2d Dept 1989]. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d 518, 520, 824 N.Y.S.2d 166, 168 [2d Dept 2006]; See Menzel v. Plotnick, 202 A.D.2d 558, 558-559, 610 N.Y.S.2d 50 [2d Dept 1994].
Generally, "[a] party's right to contractual indemnification depends upon the specific language of the relevant contract." Desena v. N. Shore Hebrew Acad., 119 A.D.3d 631, 636, 989 N.Y.S.2d 505 [2d Dept 2014]. "When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed lo avoid reading into it a duty which the parties did not intend to be assumed." Hooper Assocs., Lid. v. AGS Computers, Inc., 74 N.Y.2d 487, 491, 548 N.E.2d 903 [1989].
Turning to the merits of the motion by V&P (motion sequence #12) the Court finds that V&P has met its prima facie burden. V&P argues that the Third-Party Complaint should be dismissed as the facts of the case do not provide for an exception under Article 11 of the New York Slate Workers" Compensation Law. In general. Workers' Compensation Law §11 prohibits "most third-party claims for contribution or indemnification against an employer for injuries sustained by an employee acting within the scope of employment," Flares v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363, 367, 795 N.Y.S.2d 491 [2005]. The two exceptions are when "the employee has sustained a 'grave injury' or when there is a 'written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant.'" Id. quoting Workers' Compensation Law § 11. "Grave injury is a statutorily-defined threshold for catastrophic injuries, and includes only those injuries which are listed in the statute and determined to be permanent." Blackburn v. Wysong & Miles Co., 11 A.D.3d 421, 783 N.Y.S.2d 609 [2d Dept 2004].
In support of their position, V&P relies on the Plaintiffs Bill of Particulars, the Plaintiffs deposition, the deposition of Josh Suna. and the deposition of Mihaly Vince. In the instant proceeding, the Plaintiff does not allege sustaining any injury' that would constitute a "grave injury" in either his complaint or hill of particulars. Instead, he alleges a right ankle injury involving surgery, a left shoulder injury, a right knee tear and neck and back strains. As such, Plaintiff did not allege a grave injury as defined by the statute. See Marshall v. Arias, 12 A.D.3d 423, 424, 784 N.Y.S.2d 589, 590 [2d Dept 2004]; Fleischman v. Peacock Water Co., 51 A.D.3d 1203, 1205, 858 N.Y.S.2d 421, 423 [3rd Dept 2008]; Reinoso v. Ornstein Layton Mgmt., Inc., 34 A.D.3d 437, 438, 823 N.Y.S.2d 517, 518 [2d Dept 2006]; Blackburn v. Wysong & Miles Co., 11 A.D.3d 421, 422, 783 N.Y.S.2d 609, 610 [2d Dept 2004] see also Workers' Compensation Law § 11. As such, V&P was not obligated to the movants as a consequence of the grave injury exception.
Pursuant to Workers' Compensation Law § 11 a "grave injury" shall mean "only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability." N.Y. Workers' comp. Law § 11.
Pertinent sections of the contract between V&P and Pioneer state as follows: Section 5.2:
To the fullest extent provided by law. the Subcontractor agrees that it will hold the Contractor, its employees, officers and directors, harmless against any and all claims of whatever nature and kind that may be asserted against it by any person or party arising out of the Work covered by this contract.
Section 5.3:
To the fullest extent provided by law. the subcontractor agrees to indemnify and hold harmless the Contractor, its employees, officers and directors, and such persons and entities as may be required by the Contract Documents from all claims against any of them for personal injury or wrongful death or property damages excluding damage to the project itself which is covered by insurance, arising out of the negligent performance or negligent act of the Subcontractor or anyone directly or indirectly employed by the subcontractor including Sub-Subcontractors in the execution or performance of this contract. In addition, the Subcontractor will maintain the following coverage... [emphasis added]
Section 1.2:
The Work will be performed in accordance with this Agreement between the Contractor and General Contractor (the "Trade Contract"), the Project specification and drawings prepared by GF55 Partners LLP (the "Project Specifications and Drawings"), the Subcontractor's shop drawings (the "Shop Drawings"). (The aforementioned documents shall be referred to collectively as the "Contract Documents").
V&P argues that the only party that it agreed to indemnify and provide insurance for is Pioneer and that it did not expressly agree to indemnity' or procure insurance for the Third-Party Plaintiffs. V&P did establish, as a matter of law. that the agreement between V&P and Pioneer. merely incorporating by reference the agreement between Pioneer and the General Contractor. reflects that V&P did not expressly agree to indemnify or procure insurance to the Third-Party Plaintiffs. See Pope v. Supreme K.R.W. Constr. Corp., 261 A.D.2d 523, 524, 690 N.Y.S.2d 632 [2d Dept 1999]. "'Under New York law. incorporation clauses in a construction subcontract. incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character and manner of the work to be performed by the subcontractor." Persaud v. Boris Lend Lease, Inc., 93 A.D.3d 831, 833, 941 N.Y.S.2d 208, 210-11 [2d Dept 2012], quoting Wailkus v. Metro. Hous. Partners, 50 A.D.3d 260, 854 N.Y.S.2d 388 [1st Dept 2008]. Although the word Owner or General Contractor may serve to incorporate the indemnity obligation to those parties, no such reference is made in the subject contract indemnity provisions. In addition, although the insurance provision references the "General Contractor" it does not specify an obligation to insure the General Contractor. See Goya v. Longwood Haus. Dev. Fund Co., Inc., 192 A.D.3d 581, 582, 146 N.Y.S.3d 59, 62 [1st Dept 2021], In opposition, the Defendant Owners and GC have failed to raise an issue of fact. Therefore. V&P's motion for summary judgment is granted and the third party complaint is dismissed. In light of this holding Defendant Owners and (GC's motion (MS#13) is dented as academic.
Based upon the foregoing, it is hereby ORDLRLD as follows:
Third Party Defendant V&P's motion (motion sequence #12) is granted and the Third Party Complaint is dismissed as against V&P.
The motion by Defendants/Third Party Plaintiffs Purves Development LLC, Silvercup Properties LLC and S2 Construction, LLC (motion sequence #13) for summary judgment as to the Third and fourth Causes of Action of the Third Party Complaint is denied as academic.
The foregoing constitutes the Decision and Order of the Court.