Opinion
32455/08
10-16-2015
Main UDDIN, Plaintiff, v. A.TA. CONSTRUCTION CORP. and Park Slope Condominium, Defendants. A.T.A. Construction Corp., Third-Party Plaintiff, B.D. Builders USA, Inc. and Scottsdale Insurance Company, Third-Party Defendants. The Park Slope Condominium, Second Third-Party Plaintiff, Flan Realty LLC, Second Third-Party Defendant.
Law Offices of Perry D. Silver, New York, NY for plaintiff Main Uddin Baxter, Smith & Shapiro, P.C., Hicksville, NY for defendant/third-party plaintiff A.T.A Constr. Corp. Silverman Sclar Shin & Byrne PLLC, New York, NY for defendant/second third-party plaintiff Park Slope Condominium Cascone & Kluepfel, LLP, Garden City, NY for third-party defendant B/D/ Builders USA, Inc. Hannum Feretic Prendergast & Merlino, LLC, New York,, NY for second third-party defendant Flan Realty, LLC Carroll, McNulty & Kull, LLC, New York, NY for third-party defendant Scottsdale Insurance Company
Law Offices of Perry D. Silver, New York, NY for plaintiff Main Uddin
Baxter, Smith & Shapiro, P.C., Hicksville, NY for defendant/third-party plaintiff A.T.A Constr. Corp.
Silverman Sclar Shin & Byrne PLLC, New York, NY for defendant/second third-party plaintiff Park Slope Condominium
Cascone & Kluepfel, LLP, Garden City, NY for third-party defendant B/D/ Builders USA, Inc.
Hannum Feretic Prendergast & Merlino, LLC, New York,, NY for second third-party defendant Flan Realty, LLC
Carroll, McNulty & Kull, LLC, New York, NY for third-party defendant Scottsdale Insurance Company
Larry D. Martin, J.
The following papers numbered 1-38 read herein :
Papers Numbered
Notice of Motion/Cross Motion and Affirmations (Affidavits) Annexed 1-2, 8-10, 22-24, 26-27, 28-29
Opposing Affirmations and Affidavits Annexed 3, 4, 5, 11, 12, 25, 30, 31, 33
Reply Affirmation 6, 7, 13, 14, 15-17, 18-19, 20-21
BD's Memoranda of Law 36, 37, 38
On Oct. 15, 2007, plaintiff Main Uddin (hereafter, plaintiff) was injured when a piece of ceramic tile he was breaking with a jackhammer flew off and hit him in the eye. When his accident occurred, he was not wearing protective goggles. At the time, he was performing demolition work for his employer, third-party defendant B.D. Builders USA, Inc. (hereafter, BD), which was insured by third-party defendant Scottsdale Insurance Company (hereafter, Scottsdale). BD was a subcontractor hired by the general contractor, defendant/third-party plaintiff A.T.A. Construction Corp. (hereafter, ATA). ATA was hired by the owner of the work site, the second third-party defendant Flan Realty LLC (hereafter, Flan), which was erecting a condominium to be owned by defendant/second third-party defendant, The Park Slope Condominium (hereafter, Condo). Plaintiff commenced the instant action against ATA and Condo. ATA impleaded BD and Scottsdale. Condo impleaded Flan. By decision and order, dated Mar. 9, 2015, the Court denied Condo's motion for summary judgment dismissing plaintiff's claims against it and further denied plaintiff's motion for leave to add Flan as a direct defendant. After plaintiff filed a note of issue on Apr. 10, 2014, the parties served the instant motions and cross motions.
In Seq. No. 11, Flan moves for summary judgment (1) dismissing Condo's complaint against it, and (2) on its contractual indemnification claims against ATA and BD.
In Seq. No. 13, Scottsdale moves for summary judgment dismissing (1) ATA's complaint against it, and (2) Flan's claims against it.
In Seq. No. 14, BD moves for summary judgment dismissing (1) ATA's complaint against it, and (2) Flan's and Condo's claims against it.
In Seq. No. 15, Flan cross-moves for summary judgment on liability on its claims against Scottsdale.
In Seq. No. 16, ATA cross-moves for leave to serve its late motion for summary judgment and, upon granting such leave, for summary judgment declaring that BD and Scottsdale are required to defend and indemnify ATA in the underlying action.
After the instant motions/cross motions were served, the Court, by order, dated July 21, 2015, vacated the note of issue. On Aug. 18, 2015, plaintiff filed a new note of issue. The instant motions/cross motions, all of which were served before the new note of issue, are, therefore, all considered timely and will be addressed on the merits, regardless of whether or not they were timely served with reference to the original, and now vacated, note of issue. Hence, the branch of ATA's cross motion which is for leave to serve its late motion for summary judgment is granted. In addition, the Court, in its discretion, has accepted all surreplies (however denominated) and responses thereto (see Held v. Kaufman , 238 AD2d 546, 548 [2d Dept 1997], affd as modified 91 NY2d 425 [1998] ).
The relief sought in the instant motions/cross motions can be grouped into four general categories: (1) ATA's, Flan's, and Condo's claims against BD, (2) ATA's and Flan's claims against Scottsdale, (3) Flan's claims against ATA, and (4) Condo's claims against Flan. The term "claim," as used herein, includes cross claims. The term "ATA/Flan," as used herein, is a joint designation for ATA and Flan.
Claims Against BD
The claims against BD consist of (1) common-law contribution and indemnification, (2) contractual indemnification, and (3) breach of contract to obtain insurance. According to the pleadings, only ATA and Flan have asserted claims against BD. It does not appear from the pleadings that Condo has asserted any claim against BD. Further, Condo has served no opposition to BD's motion seeking dismissal of Condo's claim. Thus, the branch of BD's motion for summary judgment dismissing Condo's claim against it is granted without opposition.
Common-Law Contribution and Indemnification Claims
BD has made a prima facie showing that ATA/Flan's claims against it sounding in common-law contribution and indemnification are barred by Workers' Compensation Law § 11, since plaintiff's alleged injury — decrease in vision in one eye — is not "grave" within the meaning of the Workers' Compensation Law. In opposition, ATA/Flan fail to contest that plaintiff's injury was not grave. Accordingly, the branch of BD's motion for summary judgment dismissing ATA/Flan's common-law contribution and indemnification claims against it is granted, and such claims are dismissed (see Flores v. Lower E. Side Serv. Ctr., Inc. , 4 NY3d 363, 367 [2005], rearg denied 5 NY3d 746 [2005] ).
Workers' Compensation Law § 11 defines "grave injury" as, among other things, "total and permanent blindness." The accident did not cause plaintiff to become totally and permanently blind.
Contractual Indemnification Claims
ATA/Flan's claims sounding in contractual indemnification are based on the Construction Contract, dated Aug. 13, 2007, between ATA and BD (hereafter, the subcontract), which was in effect at the time of plaintiff's accident. Paragraph 17 of the subcontract provides (with the original grammar and spelling reproduced verbatim):
Workers' Compensation Law § 11, by its express terms, does not bar a contractual indemnification claim against an employer.
"Owner [Flan] shall purchase and keep fire, extended coverage, vandalism and malicious mischief insurance upon the entire work. The policies are to cover full insurance value of all work materials at the work site. The policy shall cover the parties and subcontractors as their interest may appear, subject to terms of mortgages on the work site. Owner shall give Contractor copies of all policies before work starts. The parties waive all rights they have against each other for damages covered by this insurance. The Contractor [BD] shall obtain from subcontractors waivers to the same effect. B.D. Builders USA, Inc. (Sub-Contractor will hold harmless Flan Realty LLC (Owner) and A.T.A. Construction (General Contractor). BD Builder will provide all necessary insurances for work " (italics added).
Paragraph 17, except for the italicized sentences, is a printed form contract. The italicized sentences have been typed at the end of ¶ 17 of the printed form contract. A review of the entire subcontract indicates that it is a form that is used for a contract between an owner and a general contract. It references architects and the need for architect approval. It imposes various obligations on the owner, including the insurance provision reproduced above. Thus, the specific sentence on which the Court must focus in deciding whether BD is contractually bound to provide indemnification to ATA and Flan reads, as follows:
"B.D. Builders USA, Inc. (Sub-Contractor) will hold harmless Flan Realty LLC (Owner) and A.T.A. Construction (General Contractor)" (hereafter, the hold-harmless clause).
The hold-harmless does not state whether it covers a claim (1) arising out of a bodily injury, (2) by a BD employee, or (3) arising out of BD's work. It does not use the key word "indemnify."
The contracting parties' pretrial testimony sheds no light as to what the parties intended by the hold-harmless clause. According to the pretrial testimony of BD's owner (Mahamud tr at 54:17-57:12, 69:23-71:20, 73:20-23, 74:19-23, 93:10-94:5), Flan (the site owner) prepared the subcontract and presented it for BD's owner to sign. BD's owner signed the subcontract without reading or making any changes to it. BD's owner did not know the name of the entity with which he contracted (i.e. , ATA) and denied speaking with anyone from ATA. Nothing in the testimony of BD's owner indicates that BD intended (or did not intend) to provide contractual indemnity.
The pretrial testimony of ATA's owner who signed the subcontract with BD is evasive, self-contradictory, and interspersed with "I don't remember" (see M. Mishal tr at 45:9-47:4, 77:15-18, 100:24-101:23, 104:18-106:15; see also M. Mishal tr at 49:15-16 ["I don't read well, so tell me what it (the subcontract) says."]; 118:19-119:21 ["Q. Did you negotiate that paragraph (¶ 17 with the hold-harmless clause)? A. I can't remember."]; 79:20-21 ["I don't remember talking to anybody from B.D."] ).
"An indemnity clause must reflect the unmistakable intent of the parties as to the scope of its coverage" ( Redding v. Gulf Oil Corp. , 38 AD2d 850, 851 [2d Dept 1972] ). Where the scope of coverage is not demonstrated by such unmistakable intent, the clause cannot be enforced to cover damages that may not have been intended (see Vigliarolo v. Sea Crest Constr. Corp. , 16 AD3d 409 [2d Dept 2005] ; Solomon v. City of New York , 111 AD2d 383 [2d Dept 1985], affd for reasons stated below 70 NY2d 675 [1987] ).
The issue on appeal in Vigliarolo , as framed by the appellant's brief therein available at 2004 WL 3560614, was "whether the indemnity agreement, which provided that the employer ‘hereby agrees to and does indemnify [the general contractor] and the owner and hold them harmless from all loss, liability, claims, damages, suits, actions and proceedings whatsoever ... which may be brought on account of injuries ... to persons ... during and because of the performance of this work except for the sole negligence of the general contractor's employees,’ encompasses the claims made by employees of the employer." Vigliarolo (at page 410) answered in the negative, stating:
"The indemnification clause at issue did not specifically include the claims of [the subcontractor's] employees. Since it cannot be said that indemnification for claims by [the subcontractor's] employees was ‘the unmistakable intent of the parties’ ( Solomon v. City of New York , 111 AD2d 383, 388, 489 NYS2d 592 [1985] ) [the subcontractor] is not required to indemnify the appellants under the circumstances herein."
Vigliarolo relied on the Second Department's decision in Solomon , which construed the following indemnification provision:
"'If the persons or property of others sustain loss, damage or injury resulting from the negligence or carelessness of the Contractor, or his subcontractors, in their performance of this contract, or from his or their failure to comply with any of the provisions of this contract or of law, the Contractor shall indemnify and hold the City harmless from any and all claims and judgments for damages and from costs and expenses to which the City may be subjected or which it may suffer or incur by reason thereof'" (italics added).
Solomon held that the use of the italicized phrase "the persons or property of others" created an ambiguity as to whether the clause was intended to provide the indemnified party with indemnification for all claims arising out of the work the indemnifying party contracted to perform, including those claims of the indemnifying party's employees, or whether the clause was only intended to provide the indemnified party with indemnification for claims by third parties. Thus, Solomon held, the employer was not required to indemnify the owner under the foregoing indemnification provision (see Solomon , 111 AD2d at 387-388 ).
See also Perron v. Hendrickson/Scalamandre/Posillico (TV) , 2004 NY Slip Op 30073(U), 2004 WL 5488395 (Sup Ct, Suffolk County, Decision and Order, dated Sept. 7, 2004). The Perron decision and order was summarily affirmed by the Second Department, as reported at 22 AD3d 731 (Oct. 24, 2005), lv to reargue denied 2006 NY Slip Op 60478(U) (Jan. 10, 2006), lv denied 7 NY3d 706 (July 5, 2006).
The Court finds that BD has demonstrated, prima facie, that the hold-harmless clause does not reflect the parties' unmistakable intent that BD was to indemnify ATA/Flan for a claim of bodily injury sustained by one of BD's employee during its work on the project.
In opposition, ATA/Flan have failed to raise a triable issue of material fact. ATA/Flan's reliance on Reyes v. Post & Broadway, Inc. , 97 AD3d 805, 808 (2d Dept 2012), is unavailing. In Reyes , unlike the case here, the record included "the unrebutted testimony of the defendants' principal that the appellant's principal agreed to provide complete ‘protection’ to the defendants in the event of any accidents at the work site." Contrary to ATA/Flan's contention, the certificates of insurance, issued by BD's broker to Flan, are not evidence of BD's express written agreement to indemnify, given that the agreement to buy insurance coverage is distinct from, and treated differently than, the agreement to indemnify (see Kinney v. Lisk Co. , 76 NY2d 215, 219 [1990] ).
Accordingly, the branch of BD's motion for summary judgment dismissing ATA/Flan's contractual indemnification claims against it is granted, and such claims are dismissed. Conversely, the branches of ATA's cross motion and Flan's motion for summary judgment on their respective contractual indemnification claims against BD are denied.
Having concluded that BD is not contractually bound to indemnify ATA/Flan, the Court need not reach the question of (1) the validity of the hold-harmless clause under General Obligations Law § 5-322.1, which prohibits indemnification for one's own negligence, (2) whether, as BD asserts, ATA was actively negligent and supervised plaintiff's work, and (3) whether, as BD contends, plaintiff was a recalcitrant worker and the sole proximate cause of his accident.
Breach of Contract to Obtain Insurance
The parties do not dispute that Workers' Compensation Law § 11 permits a third-party action against an employer premised upon the employer's alleged breach of an agreement to procure liability insurance (see Santos v. Floral Park Lodge of Free & Accepted Masons, No. 1016 , 261 AD2d 526 [2d Dept 1999] ).
ATA/Flan's claims against BD for breach of contract to obtain insurance are based on the following clause in ¶ 17 of its subcontract with ATA:
"BD Builder will provide all necessary insurances (sic) for work" (hereafter, the necessary-insurance clause).
The Court finds that BD has failed to establish, prima facie, that it complied with the necessary-insurance clause, since, as set forth more fully below, the Court finds that ATA/Flan are not the additional insureds under the blanket additional insured endorsement of the Scottsdale policy. Thus, the branch of BD's motion for summary judgment dismissing the insurance-procurement claims against it is denied (see Weitz v. Anzek Constr. Corp. , 65 AD3d 678, 681 [2d Dept 2009] ).
Contrary to BD's contention, the provision in subcontract, ¶ 17 stating that "[t]he parties waive all rights they have against each other for damages covered by this insurance " is beside the point. The italicized phrase "this insurance" refers to the separate insurance to be obtained by Flan, rather than by BD.
ATA/Flan's Claims Against Scottsdale
ATA/Flan's contention that Scottsdale is obligated to provide them with defense and indemnification as additional insureds under the blanket additional insured endorsement of the Scottsdale policy is based on four documents: (1) the blanket additional insured endorsement in the Scottsdale policy (hereafter, the blanket endorsement), (2) the aforementioned necessary-insurance clause in the subcontract, (3) the pretrial testimony of BD's owner about the written instructions allegedly provided to him by Flan regarding insurance to be obtained, and (4) two certificates of insurance, dated Aug. 10, 2007, and Aug. 22, 2007, issued by BD's broker to Flan and naming ATA/Flan as additional insureds.
The blanket endorsement in the Scottsdale policy provides:
"With respect to this endorsement, SECTION II — WHO IS AN INSURED is amended to included as an additional insured any person or organization whom you are required to add as an additional insured on this policy under a written contract , written agreement or written permit which must be:
a. Currently in effect or becoming effective during the terms of the policy; and
b. Executed prior to the ‘bodily injury,’ ‘property damage,’ or ‘personal and advertising injury’ " (italics added).
For ATA/Flan to qualify as additional insureds under the blanket endorsement, the subcontract must require that ATA/Flan be added as additional insureds thereunder. Here, however, the subcontract contains no such requirement. The only relevant provision in the subcontract is the aforementioned necessary-insurance clause, which merely states that "BD Builder will provide all necessary insurances (sic) for work." The necessary-insurance clause says nothing about including ATA/Flan as additional insureds on the Scottsdale policy. The necessary-insurance clause, thus, is insufficient to qualify ATA/Flan as additional insureds under the blanket endorsement (see 140 Broadway Prop. v. Schindler El. Co. , 73 AD3d 717, 719 [2d Dept 2010] ; Empire Ins. Co. v. Ins. Corp. of New York , 40 AD3d 686, 688 [2d Dept 2007] ; see also Strauss Painting, Inc. v. Mt. Hawley Ins. Co. , 24 NY3d 578, 596 [2014], rearg denied 24 NY3d 1217 [2015] ).
Contrary to ATA/Flan's contention, the pretrial testimony of BD's owner, Mr. Mahamud, cannot supplement the necessary-insurance clause in order to qualify ATA/Flan as additional insureds under the blanket endorsement. Mr. Mahamud testified (at pages 77:23-82:3) that (1) Flan's principal, Ronene "Ronnie" Flancraich, gave him a piece of paper with specific instructions written on it concerning insurance, (2) he (Mr. Mahamud) took that piece of paper took to his (i.e. , BD's) insurance broker, and (3) his insurance broker, in turn, issued one (and later another) certificate of insurance naming ATA and Flan as additional insureds. Since Mr. Mahamud did not know what was written on that piece of paper, which was never produced in discovery, and since BD insurance broker was not deposed, there is no way for the Court to ascertain what was written on that piece of paper. More importantly, however, when Mr. Mahamud was specifically asked (at page 81:9-14) "[w]hen Ronnie gave you this piece of paper, did Ronnie tell you that you needed to get insurance for certain companies, other th[a]n B.D. Builders, with regard to this project," Mr. Mahamud answered, "No."
The absence of the piece of paper which Flan's principal allegedly gave to BD's owner and which the latter allegedly brought to BD's insurance broker distinguishes this case from Matthius v. Platinum Estates , 74 AD3d 908 (2d Dept 2010), which involved two writings: an insurance-procurement clause in one contract and an indemnification clause in another contract between the same parties. In Matthius , extrinsic evidence was admitted to explain the terms of an agreement containing a general provision requiring insurance. Such extrinsic evidence was in the form of a separate indemnification agreement which contained specific provisions regarding the amount of insurance to be provided and the parties to be insured. Here, unlike the situation in Matthius , the record contains only one writing between the parties; namely, the subcontract. The certificates of insurance issued by BD's broker to Flan are not writings between the parties (i.e. , ATA and BD) and thus cannot supplement the terms of the subcontract. It is not the case here that the subcontract is incomplete; rather, the subcontract at issue does not contain the necessary language to invoke the blanket endorsement. More fundamentally, Matthius did not address the issue, presented herein, whether extrinsic evidence may be used to supplement the underlying contract for the purposes of obtaining an additional insured status.
The two certificates of insurance from BD's broker to Flan, naming ATA/Flan as additional insureds under the Scottsdale policy, cannot establish coverage. By their express terms, the certificates of insurance were "issued as a matter of information only and confer[red] no rights upon the certificate holder." The certificates of insurance are insufficient, by themselves, to show that BD bought the required insurance (see McGill v. Polytechnic Univ. , 235 AD2d 400 [2d Dept 1997] ). During the relevant time period, BD's insurance broker (Bay Park Brokerage, Inc.) was not an agent of Scottsdale and possessed no underwriting authority over the Scottsdale policy which was issued by Scottsdale's general agent North Island Facilities Ltd. North Island's files concerning the Scottsdale policy contain no certificates of insurance or any documents indicating that ATA and/or Flan were included as additional insureds or that any request was ever made to it that ATA and/or Flan be included as additional insureds. Although, on summary judgment, a certificate of insurance may be sufficient to raise an issue of fact where additional factors exist favoring coverage (see Morrison-Knudsen Co. v. Continental Cas. Co. , 181 AD2d 500 [1st Dept 1992] ), no such additional factors are present here.
See Affidavit of Jack F. McComb, Scottsdale's Contract Underwriting Manager, dated Apr. 29, 2014, ¶ 4.
See Affidavit of Steven Rodriguez, Vice President of Northen Island, dated Apr. 30, 2014, ¶ 3.
Lastly, ATA/Flan's reliance on the pretrial testimony of Scottsdale's Senior Technical Claims Specialist Gary Gray in which he acknowledged that the terms "written contract, "written agreement," "written permit," or "executed," as used in the blanket endorsement, are not defined in the Scottsdale policy, is unavailing. Indeed, Mr. Gray's pretrial testimony bolsters, rather than detracts from, Scottsdale's position that ATA/Flan are not additional insureds under the blanket endorsement. Mr. Gray testified (at pages 118:22-119:4) that "the [blanket] endorsement requires an agreement in writing that the party be named as an additional insured. And this contract clearly doesn't modify our policy ... or the endorsement."
Accordingly, the Court concludes that neither ATA nor Flan is an additional insured under the blanket endorsement. Since neither ATA nor Flan is covered under the blanket endorsement and they have offered no other reason why they should be covered by the Scottsdale policy, Scottsdale was not required to disclaim coverage to them in accordance with Insurance Law § 3420 (d) (see State Farm Fire and Cas. Co. v. Raabe , 100 AD3d 738, 739 [2d Dept 2012] ). The branch of Scottsdale's motion which is for summary judgment is granted. ATA's third-party complaint and Flan's claims, in each case, against Scottsdale, are dismissed. The branches of ATA's and Flan's respective cross motions for summary judgment on their claims against Scottsdale are denied.
Flan's Claim Against ATA
Flan's contractual indemnification claim against ATA is based on the Construction Contract, dated Apr. 15, 2004, between Flan and ATA (hereafter, the contract), which was in effect at the time of plaintiff's accident. Paragraph 17 of the contract provides, in relevant part (with the original grammar and spelling reproduced verbatim):
"Contractor will hold harmless for all contractors & contractor's workers negligent."
As a third-party (rather than a direct) defendant in this case, Flan is not subject to the Labor Law liability (see Furia v. Mellucci , 163 AD2d 88, 89 [1st Dept 1990], lv denied 77 NY2d 803 [1991] ; Young v. Casabonne Bros., Inc. , 145 AD2d 244, 247 [3d Dept 1989] ). Rather, Flan's duty, which is derived from common law, was to provide plaintiff with a safe place to work. "An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" ( Russin v. Louis N. Picciano & Son , 54 NY2d 311, 317 [1981] ). "General supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence...." ( Dos Santos v. STV Engrs., Inc. , 8 AD3d 223, 224 [2d Dept 2004], lv denied 4 NY3d 702 [2004] ). "Further, the authority to review safety at the site is insufficient if there is no evidence that the defendant actually controlled the manner in which the work was performed" ( Perri v. Gilbert Johnson Enters., Ltd. , 14 AD3d 681, 683 [2d Dept 2005] ).
As noted, General Obligations Law § 5-322.1 prohibits indemnification for one's own negligence. Thus, if Flan establishes its freedom from negligence, the contractual indemnification clause, as applied, will not run afoul of the statutory proscription (see Guryev v. Tomchinsky , 114 AD3d 723, 726 [2d Dept 2014], lv dismissed 23 NY3d 954 [2014] ). Flan has demonstrated, through plaintiff's pretrial testimony, that it did not supervise the manner in which he performed his work. In opposition, however, ATA has submitted pretrial testimony of Flan's principal, Ronene "Ronnie" Flancraich stating that he specifically instructed plaintiff and his coworkers, before the accident, to wear safety goggles. More specifically, Ronene Flancraich testified (at pages 90:22-92:5), as follows:
"Q. What had you discussed with him [i.e. , plaintiff]?
A. Sometimes about the work done.
Q. Did you ever discuss anything concerning safety with him?
A.... [Y]es, I remember I did .
Q. Before the accident?
A. Yes.
Q. What did you say concerning safety?
A.... I just told him that make sure that you and your men[ ] wear hats and — this was in the in the beginning — and goggles — as I require at all time[s].
Q.... You said as I require?
A. As we require as Flan ... and I was representing Flan ... at this time .
* * *
Q. What did he tell you when you told him that?
A. He said sure, we will (italics added).
Based on the foregoing testimony, which Flan completely ignores in its reply, ATA has raised a triable issue of fact as to whether Flan possessed more than a general supervisory authority over the performance of plaintiff's work. Since Flan has not established that it was free from negligence, that branch of its motion which is for summary judgment on its contractual indemnification claim against ATA is denied as premature (see Biscup v. E.W. Howell, Co. , 2015 NY Slip Op 06772, *1 [2d Dept 2015]; Brasch v. Yonkers Constr. Co. , 306 AD2d 508, 510 [2d Dept 2003] ).
Condo's Claims Against Flan
Since, as noted above, there is a triable issue of fact as to whether Flan was negligent, the branch of its motion for summary judgment dismissing Condo's complaint against it is denied as premature.
Conclusion
In Seq. No. 11, the branch of Flan's motion which is for summary judgment (1) dismissing Condo's complaint against it and (2) on its contractual indemnification claim against ATA is denied as premature. The remaining branch of Flan's motion which is for summary judgment on its contractual indemnification claim against BD is denied.
In Seq. No. 13, Scottsdale's motion for summary judgment dismissing (1) ATA's complaint against it, and (2) Flan's claims against it is granted. ATA's complaint and Flan's respective claims against Scottsdale are dismissed.
In Seq. No. 14, the branch of BD's motion for summary judgment dismissing ATA's complaint and Flan's claims against it is granted with respect to (1) the common-law indemnification and contribution claims and (2) the contractual indemnification claims, but is denied with respect to ATA's and Flan's respective claims against BD for failure to obtain required insurance. ATA's and Flan's respective claims against BD sounding in common-law indemnification and contribution, as well as in contractual indemnification, are dismissed; however, ATA's and Flan's respective claims against BD sounding in breach of contract to obtain insurance naming them as additional insureds under BD's liability policy are not dismissed and shall continue. The remaining branch of BD's motion which is for summary judgment dismissing Condo's alleged claim against it is granted without opposition.
In Seq. No. 15, Flan's cross motion for summary judgment on its claims against Scottsdale is denied.
In Seq. No. 16, the branch of ATA's cross motion which is for leave to serve its late motion for summary judgment is granted and, upon granting such leave, its cross motion is denied.
The Court hereby declares that (1) neither ATA nor Flan is an additional insured under the blanket endorsement of the Scottsdale policy, and (2) Scottsdale is not required to defend or indemnify ATA or Flan, either jointly or severally. Scottsdale is dismissed from this action without costs or disbursements.
The action is severed and continued against the remaining defendants ATA, Condo, BD, and Flan. The caption is amended to read in its entirety, as follows: