Opinion
Index 509734/17
12-21-2021
LENIN VARONA and ELIZABETH CARRASCO, Plaintiffs, v. STORY AVENUE EAST RESIDENTIAL, LLC, STORY AVENUE EAST RESIDENTIAL MANAGERS, LLC, STORY AVENUE HOLDCO, LLC, L&M STORY AVENUE MANAGERS, LLC, STORY AVENUE EAST AFFORDABLE LLC, STORY AVENUE EAST AFFORDABLE MANAGERS, LLC, HP LAFAYETTE BOYNTON HOUSING DEVELOPMENT FUNO COMPANY, JNC, and L&M BUILDERS GROUP INC., Defendants. STORY AVENUE EAST RESIDENTIAL, LLC, STORY AVENUE EAST RESIDENTIAL MANAGERS, LLC, STORY AVENUE HOLDCO, LLC, L&M STORY AVENUE MANAGERS, LLC, STORY AVENUE EAST AFFORDABLE LLC, STORY AVENUE EAST AFFORDABLE MAN AGERS, LLC, HP LAFAYETTE BOYNTON IJOUSING DEVELOPMENT FUND COMPANY, INC, and L&M BUIIDERS GROUP INC., Third-Party Plaintiffs, v. 4MATIC CONSTRUCTION, CORP., Third-Party Defendants. STORY AVENUE EAST RESIDENTIAL, LLC, STORY AVENUE EAST RESIDENTIAL MANAGERS, LLC, STORY AVENUE HOLDCO, LLC, L&M STORY AVENUE MANAGERS, LLC, STORY AVENUE EAST AFFORDABLE LLC, STORY AVENUE EAST AFFORDABLE MANAGERS, LLC, HP LAFAYETTE BOYNTON HOUSING DEVELOPMENT FUND COMPANY, INC, AND L&M BUILDERS GROUP INC., Second Third-Party Plaintiffs, v. PRO SAFETY SERVICES LLC AND LIBROS MASONRY CORP., Second Third-Party Defendants. STORY AVENUE LAST RESIDENTIAL, LLC, STORY AVENUE EAST RESIDENTIAL MANAGERS, LLC, STORY AVENUE HOLDCO, LLC, L&M STORY AVENUE MANAGERS, LLC, STORY AVENUE EAST AFFORDABLE LLC, STORY AVENUE EAST AFFORDABLE MANAGERS, LLC, IIP LAFAYETTE BOYNTON HOUSING DEVELOPMENT FUND COMPANY, INC, AND L&M BUILDERS GROUP INC., Third Third-Party Plaintiffs, v. 4MATIC CONSTRUCTION, CORP., Third Third-Party Defendants.
Unpublished Opinion
INGRID JOSEPH, JUDGE
The following e-filed papers read herein:
NYSEF Doc. Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed _______
216, 218, 297-297, 322-323, 354-355, 369-370, 384-385, 400
Opposing Affidavits (Affirmations)_______
236, 279, 299, 347, 416, 417, 418 419, 420, 422, 423, 435, 447, 459, 478
Affidavits/ Affirmations in Reply______
284, 466, 474, 485, 487, 491
Upon the foregoing papers, second third-party defendant Pro Safety Services LLC (Pro Safety) (Mot. Seq. 8) and second third-party defendant Libros Masonry Corp. (Libros) (Motion Seq. 11) move for an order: (1) pursuant to CPLR § 1010, dismissing or, alternatively, severing the second third-party action; or alternatively, (2) pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21 (c), vacating the note of issue and striking the matter from the trial calendar; or alternatively, (3) granting Pro Safety and Libros leave to move for summary judgment 60 days alter the completion of all discovery in the third-party action while this matter remains on the trial calendar.
Although it does not seek dismissal of the third third-party action, third third-party defendant 4Matic Construction Corp. (4Matic) otherwise moves for the same relief as Pro Safety and Libros with respect to the third third-party action (Motion Seq. 12).
In separate motions, plaintiff moves, pursuant to CPLR §§ 603 and 1010, to sever Libros and 4Matic from the action (Motion Seq. 10 and 13).
Finally, defendants/third-party plaintiffs/second third-party plaintiffs/third third-party plaintiffs Story Avenue Hast Residential. LLC. (Story Avenue Residential). Story Avenue Fast Residential Managers, LLC, Story Avenue Holdco, LLC, L&M Story Avenue Managers. LLC, Story Avenue Last Affordable LLC. (Story Avenue Last Affordable). Story Avenue Fast Affordable Managers, LLC. IIP Lafayette Boynton Housing Development Fund Company, Inc., and L&M Builders Group Inc. (L&M Builders) (collectively referred to as defendants) move for an order, pursuant to CPLR § 3212, granting them summary judgment in their favor on their claim for contractual indemnification and on their claim for breach of agreement to procure insurance as against 4Matic and summary judgment dismissing the counterclaims asserted by 4Matic as against the defendants (motion sequence number 14).
In this action premised on common-law negligence and violations of Labor Law §§ 200, 240 (1). and 241 (6). plaintiff Lenin Varona alleges that he suffered injuries on April 13, 2017 when a scaffold on which he was standing to perform work on a building under construction collapsed and caused him to fall to a concrete slab 18 to 20 feet below the scaffold. Story Avenue Residential and Story Avenue Affordable were owners of the premises at issue. L&M Builders was the general contractor for the construction project at issue, and it subcontracted with Pro Safety to perform site safety consultation services on the project and subcontracted with 4Matic. plaintiffs employer, to perform masonry and cement work on the project. 4Matic, in turn, hired Libros as a sub-subcontractor. Libros' role in the project, however, is not clear from the motion papers before the court.
Counsel for 4Matic states that Libros was 4Matic's bricklaying subcontractor. 4Matric's contract with Libros, however, does not indicate the nature of Libros' work, and 4Matic's counsel points to no evidentiary proof that identifies Libros' role in the project.
Plaintiff commenced this action on May 16, 2017, with the filing of the summons and complaint. A preliminary conference order, dated January 12, 2018, required that any impleader actions be commenced within 90 days of the completion of examinations before trial. In May 2018, the defendants commenced a third-party action against 4Matic for contractual indemnification, common-law indemnification, contribution and breach of the insurance procurement provisions of their contract. After 4Matic ultimately answered the third-party complaint, defendants and 4Matic entered into a stipulation, dated September 3, 2019, discontinuing the third-party action without prejudice. Despite several orders directing that the depositions occur at an earlier date (see orders dated January 12, 2018 [Sherman, J.], September 26, 2018 [Schncier, J.H.O], May 16, 2019 [Ash, J.], September 24, 2019 [Colon, J.]), plaintiffs deposition was not held until October 28, 2019, and the defendants' witness, Hugh Emanual, L&M Builder's project manager, was not deposed until November 11, 2019. As of a September 8, 2020 order (Knipel, J.), plaintiff still owed some discovery. The court, within that order, directed that authorizations and paper discovery be provided by October 9, 2020, that plaintiffs medical examination occur by November 9, 2020, and that the note of issue be filed by March 26, 2021. In an order, dated September 25, 2020, the court granted plaintiffs motion for partial summary judgment on his Labor Law § 240 (1) cause of action as against defendants. The defendants commenced a second third-party action and third third-party action on September 28, 2020 and plaintiff filed his note of issue on December 4, 2020. Plaintiffs Pro Safety, Libros. and 4Matic and the defendants then made their respective motions at issue here.
Of note, the court, in an order dated July 13, 2021 (July 2021 order), granted the defendants' motion to reargue plaintiffs summary judgment motion to the extent that it vacated that part of the order that granted summary judgment on plaintiffs Labor Law § 240 (1) cause of action with respect to the defendants, except Story Avenue Residential, Story Avenue Affordable, and L&M Builders. In the July 2021 order, the court also awarded summary judgment in favor of the defendants, dismissing plaintiffs common-law negligence and Labor Law § 200 causes of action and plaintiffs Labor Law § 241(6) claims based on Industrial Code violations, except the claim under 12 NYCRR § 23-1.16.
Turning first to the motions by plaintiff and the second third-party and third third-party defendants, a court has the discretion to dismiss without prejudice or to sever a third-party action in order to avoid delay in the main action where discovery in the main action has been completed and the third-party defendants have not had an opportunity to obtain discovery (see Whippoorwill Hills Homeowners Assn., Inc. v Toll at Whippoorwill, L.P., 91 A.D.3d 864, 865 [2d Dept 2012]; Meczkowski v E.W. Howell Co, Inc., 63 A.D.3d 803, 804 [2d Dept 2009]; CPLR §§ 603 and 1010). Courts, however, remain reluctant to sever the third-party action where the determination of the third-party claims will involve factual and legal issues common with those in the main action because "a single trial [under such circumstances] is appropriate in the interest of judicial economy and to avoid the possibility of inconsistent verdicts" (Herrera v Municipal Hous. Auth. of City of Yonkers, 107 A.D.3d 949, 949 [2d Dept 2013]; see Barrett v New York City Health & Hasps. Corp., 150 A.D.3d 949, 951 [2d Dept 2017]; Boeke v Our Lady of Pompei School, 73 A.D.3d 825, 826 [2d Dept 2010]). These policy concerns warrant a denial of a motion to sever even where the delay in commencing the third-party action was unjustified as long as prejudice to plaintiff and the third-party defendant can be avoided by insuring that the third-party defendant receives the requisite discovery and that this discovery is provided in an expedited manner such that there is no undue delay of the action (see Range v Trustees of Columbia Univ. in the City of N.Y., 150 A.D.3d 515, 515 [1st Dcpt 20171; Herrera, 107 A.D.3d at 949; Boeke, 73 A.D.3d at 826; Jones v Board of Educ. of City of N. Y., 292 A.D.2d 500, 501 [2d Dept 2002]; Klein v City of long Beach, 154 A.D.2d 346, 347 [2d Dept 1989]; Pescatore v American Export Lines, 131 A.D.2d 739, 739 [2d Dept 1987]; Fries v Sid Tool Co., Inc., 90 A.D.2d 512, 512 [2d Dept 1982]; cf. WVH Hous. Dev. Fund Corp. v Brooklyn Insulation & Soundproofing, Inc., 193 A.D.3d 523, 523-524 [1st Dept 2021]).
Although there are cases holding that a defendant's knowingly and deliberately delaying the commencement of the third-party action will warrant the dismissal or severance of the third-party action (see Soto v CBS Corp., 157 A.D.3d 740, 741 [2d Dept 2018]; Skolnick v Max Connor, LLC, 89 A.D.3d 443, 444 [1st Dept 2011]), this court finds that defendants' delay here, in and of itself, fails to show that they knowingly and deliberately delayed the commencement of the third-party actions.
Here, defendants have failed to provide any justification for their delay in commencing the third-party actions and their failure to do so within the time-period provided in the preliminary conference order. Nevertheless, plaintiff still owed some discovery and the note of issue still had not been filed prior to the shutdowns associated with the Covid-19 pandemic in mid-March 2020. The time from mid-March 2020 until the third-party actions were commenced in September 2020 is undoubtedly tolled by the executive orders issued in response to the pandemic (see Brash v Richards, 195 A.D.3d 582, 583-585 [2d Dept 2021]). Indeed, plaintiff still owed some discovery in September 2020, and the note of issue deadline provided by the September 8, 2020 order was March 26, 2021. Defendants thus had some basis to believe that the commencement of the third-party actions would not unreasonably delay the proceedings, since the action is scheduled on the Jury Coordinating Part's calendar on February 17. 2022 for a settlement conference, not for trial. Under these circumstances, any brief additional delay to allow the third-party defendants to conduct expedited discovery would not cause plaintiff any substantial prejudice (see Klein, 154 A.D.2d at 347). Further, in view of the overlapping factual and legal issues that remain between the action and the third-party actions despite the various summary judgment determinations, the court finds that denying severance serves the interest of judicial economy.
Although plaintiff has obtained summary judgment in his favor on the Labor Law § 240 (1) cause or action against some of the defendants, and defendants have obtained dismissal of the common-law negligence and Labor Law § 200 causes of action, a trial is still required with respect to liability on the Labor Law § 240 (I) cause of action against some of the defendants, liability on the Labor Law § 241 (6) cause of action and with respect to damages.
The parties are thus directed to work out an expedited discovery schedule, with discovery to be completed on or before April 11, 2022. The third-party actions were commenced only shortly before the Filing of the note of issue and before any of the third-party defendants had an opportunity to obtain disclosure, the time to move for summary judgment relating to the third-party claims is extended to May 9, 2022 (see Parker v LIJMC-Satellite Dialyses Facility, 92 A.D.3d 740, 741-742 [2d Dept 2012]; Bissell v Town of Amherst, 56 A.D.3d 1144, 1146 [4th Dept 2008], Iv dismissed in part & Iv denied in part 12 N.Y.3d 878 [2009 J; see also Rot ante v Advance Tr. Co., Inc., 148 A.D.3d 423, 424-425 [1st Dept 2017]).
The court now turns to defendants' motion for summary judgment on their third-party claims against 4Matic. As an initial matter, as defendants made the motion a little more than two months after 4Matic joined issue, good cause is sufficiently demonstrated such that the court will consider the motion despite the fact that it was made more than 60 days after the filing of the note of issue (see Parker, 92 A.D.3d at 741-742; Bissell, 56 A.D.3d at 1146). Generally, a party seeking contractual indemnification demonstrates its prima facie entitlement to summary judgment on such a claim by showing that the terms of the agreement provide for indemnification under the circumstances of the case and that it is free from negligence (see Anderson v United Parcel Serv., Inc., 194 A.D.3d 675, 678 [2d Dept 2021]; Martinez v 281 Broadway Holdings, LLC, 183 A.D.3d 716, 718 [2d Dept 2020]; Bellreng v Sicoli & Massaro, Inc., 108 A.D.3d 1027, 1031 [4th Dept 2013]). "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 Tacts and circumstances" (Cuellar v City of New York. 139 A.D.3d 996, 998 [2d Dept 2016] [ internal quotation marks omitted]; see Hooper Assoc., v AGS Computers, 74 N.Y.2d 487, 491-492 [1989]; Day Santos v Power Auth. of State of N., 85 A.D.3d 718, 722 [2d Dept 201], Iv denied 20 N.Y.3d 856 [2013]).
Since 4Malie was not a party to the action at the time the defendants moved to dismiss the common-law negligence and Labor Law § 200 causes of action, they are not bound to this court's July 5, 2021 order, wherein the court opined that the defendants were not negligent.Nevertheless, just as they did in moving to dismiss plaintiffs claims, the defendants, through the submission of the deposition testimony of plaintiff, the deposition testimony of Hugh Emanual, L&M Builder's project manager, and an affidavit from 4Matic's project manager Louis I azzinnaro. have demonstrated that the accident did not arise from a dangerous property condition, but rather, was the result of the collapse of a defective scaffold erected by 4Matic. The defendants did not supervise or control the work at issue and were not involved in the construction of the scaffold. Therefore, they have demonstrated, prima facie, that they were not negligent (see Batik v NY Devs. & Mgt., Inc., 193 A.D.3d 562. 563 [1st Dept 2021 ]; Marulanda v Vance Assoc, LLC, 160 A.D.3d 711, 712-713 [2d Dept 2018]: Shea v Bloomberg, LP, 124 A.D.3d 621. 623 [2d Dept 2015]: Gonzalez v Magestic Fine Custom Home, 115 A.D.3d 796, 798 [2d Dept 2014]). Contrary to 4Matic's argument, Emanuals testimony regarding the authority of Pro Safety and I.&M Builder to stop the work and regarding Pro Safety's inspection role fails to demonstrate the existence of factual issues precluding defendants' prima facie showing, as nothing in this testimony suggests that defendants exercised more than general supervisory authority over the 4Matic's work (see Gonzalez, 115 A.D.3d at 798; Bink v F.C. Queens Place Assoc., LLC, 27 A.D.3d 408, 409 [2d Dept 2006]; see also Dehennedetto v Chetrit, 190 A.D.3d 933, 938 [2d Dept 2021]; Goldfien v County of Suffolk, 157 A.D.3d 937, 938 [2d Dept 20181; Messina v City of New York, 147 A.D.3d 748, 749-750 [2d Dept 2017]).
The court notes that plaintiff has submitted opposition to defendants' motion. Plaintiff, however, is bound by the July 5, 2021 order, and it is not clear to this court how plaintiff has standing to challenge the defendants' right to indemnification from 4Matic. In any event, plaintiffs arguments that defendants have failed to demonstrate that they were not negligent are rejected for the reasons stated in the July 5. 2021 order and herein.
Lazzinnaro. in his affidavit, represented that he was authorized to execute the affidavit on behalf of 4Matic. Lazzinnaro appended a copy of the contract between I.&M Builders and 4Matic to his affidavit and was the person who executed the contract on 4Matic's behalf.
The indemnification provision of L&M's contract with 4Matic (Contract) requires that 4Matic indemnify defendants for:
Iii addition to requiring indemnification on the behalf of the general contractor, owner and other entities, the indemnification provision covers "all Additional Insureds identified in Exhibit B" (Contract § 12.2 [a]) and each of the defendants is identified as an additional insured in Exhibit B to the contract.
"all losses, claims . . . damages (including without limitation any personal injury, sickness, disease or death or damage or injury to. loss of or destruction of property, and the loss of use resulting therefrom, and damage to the Work and/or the work of others), expenses (including without limitation the deductible amount of any insurance, self-insured retention payments, attorneys' fees and disbursements, court costs, expert witness fees and expenses, and any resulting settlement, judgment, or award), liabilities (including without limitation any from, in connection with or relating to: (i) the performance (or non-performance) of the Work." (Contract § 12.2 [a]).Since the aforementioned deposition testimony o\~ plaintiff and Emanual and the affidavit of Lazzinnaro show that the accident arose out 4Matic's work on the project, defendants have demonstrated that they are entitled to indemnification under the terms of this broadly worded indemnification provision (see Brown v Two Exch. Plaza Partners, 76 N.Y.2d 172, 178 [1990]; Martinez, 183 AI)3d at 718; Shea, 124 A.D.3d at 621; Bellreng, 108 A.D.3d at 1031). Even if the supposition of 4Matic's counsel that 4Matic's subcontractor Libros bears some responsibility for the accident were correct, that would not alter 4Matic's contractual obligation to indemnify defendants since the contract expressly makes 4Matic responsible for all work, acts and omissions of its subcontractors for all purposes under the contract (see Contract §14.1 [f]).
Defendants' proof that they were not negligent is also sufficient to demonstrate, prima facie, that they are entitled to dismissal of 4Matic's claims for contribution and common-law indemnification against them (see Debennedetto, 190 A.D.3d at 938-939; Culler v Thomas, 171 A.D.3d 860, 861-862 [2d Dept 2019]; Kane v Peter M. Moore Constr. Co., Inc., 145 A.D.3d 864, 869 [2d Dept 2016]; see also McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 377-378 [2011]).
4Matic, in opposition, has failed to submit evidentiary proof demonstrating a factual issue warranting denial of the portions of the motion seeking contractual indemnification and dismissal of 4Matic's counterclaims for indemnification and contribution (see Dehennedetto, 190 A.D.3d at 938-939; Martinez, 183 A.D.3d at 718; see also Zuckerman v City of New York, 49 N.Y.2d 557, 562 [19801).
The court also rejects 4Matic's assertion that defendants' motion is premature because 4Matic has not had an opportunity to obtain discovery. 4Matic has failed to offer an evidentiary basis to suggest that discovery might lead to relevant evidence or that facts essential to justify its opposition to the motion are exclusively within the knowledge and control of defendants (see Board of Mgrs. of the 23-33 Condominium v 210"' Place Realty, LLC, 185 A.D.3d 890, 891 [2d Dept 2020]; Dunn v Covanla Niagara I, LLC, 181 A.D.3d 1340, 1341 [4th Dept 2020]; Newman v Regent Contr. Corp., 31 A.D.3d 1133, 1134-1135 [4th Dept 2020]).
Notably, in this respect, 4Matic has failed to explain how it expects to find favorable evidence through discovery where defendants' motion is largely based on the statements Lazzinnaro, 4Matic's project manager, made in his affidavit. Although Lazzinnaro states that he did not see the accident, he asserts that he was a supervisor at the site of the accident and was working only 20 teet from where plaintiff fell. Lazzinnaro states that he saw plaintiff on the scaffold before the accident, that he came to his assistance shortly after the accident, that defendants did not supervise or control the work of plaintiff or any of 4Matic's employees, that defendants did not provide tools or equipment used by 4Matic, that the scaffold was owned by 4Matic, and that it was not erected by defendants. Lazzinnaro was thus in a position to know if the defendants were in anyway at fault for the happening of the accident. In light of this, 4Matic's failure to submit an affidavit from him, or any other 4Malic employee with knowledge of the accident, alleging that discovery would lead to evidence showing that the defendants were negligent, weighs against finding that the defendants' motion is premature despite the absence of discovery (see VNB N.Y., LLC v Y.M. Intercontinental Gem Corp., 154 A.D.3d 903, 904-905 [2d Dept 2017]; Ullmannglass v Oneida. Ltd., 121 A.D.3d 1371, 1373 [3d Dept 2014]; Thelen LLP v Omni Contr. Co., Inc., 79 A.D.3d 605, 606 [1st Dept 2011] Iv denied 17 N.Y.3d 713 [2011]; Hernandez v Yonkers Contr. Co., 292 A.D.2d 422, 424 [2d Dept 2002]; Bank Leumi Trust Co. of N.Y. v Samalol/Edge Assoc., 202 A.D.3d 282, 283 [1st Dept 1994]).
Defendants, however, arc not entitled to summary judgment in their favor on their cause of action for breach of the insurance procurement provisions of the contract. While the defendants have shown that their contract with 4Matic required 4Matic to obtain general liability and excess/umbrella insurance policies naming defendants as additional insureds, they have not demonstrated, prima facie, that 4Matic failed to obtain policies containing the agreed upon coverage. Namely, the only proof offered by defendants with respect to 4Matic's alleged failure to obtain the required coverage is the apparent failure of the claims administrator for 4Matic's excess carrier to respond to defendants' tender letters regarding coverage during the policy in effect from April 1, 2017 to April 1, 2018. This failure to respond to the defendants' tender letters, in and of itself, however, docs not show that that 4Matic failed to obtain the requisite coverage (see Strong v St. Thomas Church of Irondequoit, 151 A.D.3d 1887, 1889 [4th Dept 2017]; Sicilia v City of New York, 127 A.D.3d 628, 629 [1st Dept 2015]; Arner v RREEF Am., LLC, 121 A.D.3d 450, 451 [1st Dept 2014J; Ginter v Flushing Terrace, LLC, 121 A.D.3d 840, 844 [2d Dept 2014J). Defendants' motion in this respect must thus be denied regardless of the sufficiency of 4Matic's opposition papers (see Winegrad v New York Univ. Med Ctr., 64 N.Y.2d 851, 853 [1985]; Ginter, 121 A.D.3d at 844).
The claims administrator for the excess carrier had previously acknowledged that defendants were additional insureds under the policy in effect from April I, 2016 to April I, 2017. The claims administrator for 4Matics general liability insurer has acknowledged that defendants are additional insureds under the requisite general liability policy.
Based upon the foregoing, the motions by Pro Safety (Motion Seq. 8), Libros (Motion Seq. 11). 4Matic (Motion Seq. 12) and plaintiff (Motion Seq. 13) are granted only to the extent that: (1) the parties are directed to set up an expedited discovery schedule providing that all discovery relevant to the second third-party and third third-party actions is completed on or before March 11, 2022; (2) the note of issue is not vacated and the case will remain on the trial calendar, and (3) the parties' time to move for summary judgment relating to the second third-party action and the third third-party action is extended until May 9, 2022. The motions by Pro Safety, Libros, 4Matic and plaintiff arc otherwise denied. The denial of the portion of these motions requesting severance, including plaintiffs, Lenin Varona and Elizabeth Carrasco, motion to sever (Motion Seq. 10) the second third-party action against Libros is made without prejudice to renew in the event that the defendants unreasonably delay discovery.
The court reminds the parties that they have a settlement conference calendared in the Jury Coordinating Part on February 17, 2022 at 10:00 a.m.
The defendants' motion (Motion Seq. 14) is granted to the extent that 4Matic's counterclaims against the defendants are dismissed and the defendants are granted summary judgment in their favor on their contractual indemnification claim against 4Matic. The motion is denied with respect to the breach of insurance procurement claim.
This constitutes the decision and order of the court.