Opinion
Index No. 709531/2017 Motion Cal. No. 9 & 10 Motion Seq. No. 12 & 13
04-10-2024
MELISSA WIGFALL Plaintiff(s), v. KSK CONSTRUCTION GROUP, LLC, BRINGING BEST MANAGEMENT, LLC, 125TH & LENOX OWNER, LLC, 125TH & LENOX, LLC, COLGATE ENTERPRISE CORP, COLGATE RENTALS CORP, WE EXCEL INC., WE PREVAIL MANAGEMENT, LLC Defendant(s). KSK CONSTRUCTION GROUP, LLC, Third-Party Plaintiff(s), v. COLGATE ENTERPRISE CORP, COLGATE RENTALS CORP, WE EXCEL INC., and WE PREVAIL MANAGEMENT, LLC Third-Party Defendant(s).
Unpublished Opinion
Motion Date:11/13/2023
PRESENT: HONORABLE DENISE N. JOHNSON, JUSTICE
DENISE N. JOHNSON, JUDGE
The following papers numbered EF 212-295 read on this motion by COLGATE ENTERPRISE CORP. AND COLGATE RENTALS CORP, Defendants/Third-Party Defendants in this action for an order of summary judgment, on this motion by KSK CONSTRUCTION GROUP, LLC, 125th & LENOX OWNER, LLC and 125th & LENOX, LLC Defendants/Third-Party Plaintiffs in this action for an order of summary judgment and on this cross-motion by MELISSA WIGFALL, Plaintiff in this action for an order, inter alia, of partial summary judgment in favor of Plaintiffs.
Mot Seq 12
Papers Numbered
Notice of Motion-Affirmation - Statement of Material Facts - Exhibits - Service.............
EF 212-240
Affirmation in Opposition - Statement of Material Facts - Exhibits - Service. ................
EF 241-242
Affirmation in Opposition - Exhibits - Service. .....................................
EF 257 -265
Affirmation in Opposition .......................
EF 266
Reply Affirmation ........................
EF 267
Mot Seq 13
Notice of Motion-Affirmation - Statement of Material Facts - Exhibits - Service...............
EF 243- 256
Notice of Cross Motion - Affirmation - Statement of Material Facts - Exhibits - Service ........
EF 268-284
Affirmation in Opposition ....................................
EF 285
Affirmation in Opposition to Cross- Motion ..........................
EF 286-287
Reply Affirmation ..............................................
EF 288
Reply Affirmation .................................................
EF 289
Reply Affirmation .............................................
EF 290-294
Upon the foregoing papers it is ORDERED that as follows:
This is an action to recover for personally injury sustained by the Plaintiff as a result of an alleged injury that occurred on December 3, 2015 in front of the premises located at 100 West 125th Street ("subject premises"), New York in the city, county, and state of New York. Plaintiff alleges that the named defendants were negligent in the construction and maintenance of the plywood temporary construction ramp ("ramp") she was injured on. Defendants/Third-Party Defendants COLGATE ENTERPRISE CORP and COLGATE RENTALS CORP. ("CRC"), move for an order of Summary Judgment in their favor dismissing the Amended Complaint, Third-Party Complaint of KSK CONSTRUCTION GROUP, LLC, 125th & LENOX OWNER, LLC and 125th & LENOX, LLC, and any all claims and cross claims against Colgate Enterprise Corp, and Colgate Rentals Corp. Defendants/Third-Party Plaintiffs KSK CONSTRUCTION GROUP, LLC, 125th & LENOX OWNER, LLC and 125th & LENOX, LLC ("KSK") move for Summary Judgment in their favor dismissing Plaintiffs complaint and any and all claims, crossclaims and counterclaims against them. They also move for an order of Summary on their claims/crossclaims against defendant BRINGING BEST MANAGEMENT, LLC ("BBM"), and Plaintiff MELISSA WIGFALL all move for Summary Judgment in her favor granting partial summary judgment against defendants KSK CONTRUCTION GROUP, LLC, 125TH & LENOX OWNER, LLC., and 125th & LENOX, LLC.
Motion Sequence 12:
Defendants/Third-Party Defendants CRC have moved for Summary Judgment against Plaintiff seeking the dismissal of the Amended Complaint and Summary Judgment against KSK seeking the dismissal of the Third-Party complaint and all claims against them. In the Amended complaint Plaintiff alleges that she was injured when the ramp popped up as she was walking across it which caused her to fall and become injured. Plaintiff alleges that the ramp was negligently constructed and/or maintained. In their Third-party complaint KSK alleges common law indemnification, common law contribution, contractual indemnification, contractual contribution, and breach of contract. CPLR §3212 requires that for a court to grant summary judgment the court must determine that the proponent of a summary judgment motion has made prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (See Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant (see, Grivas v. Grivas, 113 A.D.2d 264, 269 [2d Dept. 1985]; Airco Alloys Division, Airco Inc. v. Niagara Mohawk Power Corp., 76 A.D.2d 68 [4th Dept. 1980]; Parvi v. Kingston, 41 N.Y.2d 553, 557 [1977]). In order for a court to grant summary judgment the court must determine whether the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law (see, Friends of Animals, Inc., v. Associated Fur Mfrs., 46 N.Y.2d 1065 [1979]; Orwell Bldg. Corp. v. Bessaha, 5 A.D.3d 573 [2d Dept. 2003]). To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) resulting injury proximately caused by the breach (Solomon v City of New York, 66 N.Y.2d 1026 [1986]). When such a showing has been made by the movant, then to defeat summary judgment 'the opposing party must show facts sufficient to require a trial of any issue of fact'"(Khorana v Stop & Shop Supermarket Co. LLC, 2012 NY Slip Op 31878[U] [Sup Ct, Nassau County 2012]).
Here, CRC alleges that Plaintiff is unable to establish that there was a duty of care owed to the Plaintiff by CRC as CRC Defendants were not responsible for any construction work that was completed on the subject premises. CRC alleges that other Defendants were fully responsible for the construction work being completed on the subject premises. Movants further argue that they did not control or supervise the work of KSK or any other Defendant during the construction located on the subject premises and thus no duty of care can be established. Movants argue that collectively they only acted as a supplier of scaffolding equipment and supplies. The responsibility of Colgate Rentals Corp, was to supply the parts for a sidewalk bridge to be placed around the subject premises. The responsibility of Colgate Enterprise Corp, was to erect and dismantle the sidewalk bridge. In support of this argument CRC offers the Trade Contract Agreement between KSK and Colgate Enterprise Corp, Trade Contract Agreement between KSK and Colgate Rentals Corp., Project Review Ledger, Plaintiff's EBTs, Pictures of the ramp, CRC EBT, Ayverdi EBT on behalf of KSK, and the Garcia EBT on behalf of Bringing Best. Here, the movant has submitted admissible evidence to show that the work performed by CRC pursuant to the Trade Agreement contracts and based upon the testimony given during the parties EBTS, was work that exclusively related to the construction of the sidewalk bridge. As movants have put forth viable evidence to show that there was no causal nexus between the work performed by CRC and the Plaintiffs injuries the non- moving parties must bring forth evidence to show that a triable issue of fact exists that would warrant the denial of the motion.
KSK opposes the motion for summary judgment arguing that there is a material question of fact as to the construction/placement of the ramp that allegedly resulted in the Plaintiffs injury. KSK alleges that they did not employ any laborers nor did not have any workers present at the project on a daily basis that would have been responsible for the construction of and the maintenance of the ramp. They further allege that KSK did not construct or place the subject ramp. KSK has not however put forth evidence to establish that the Movants were in fact responsible or could be found to be responsible for the condition that resulted in the Plaintiffs injuries. Plaintiff only opposes this motion in so far as they oppose a finding that indemnification is granted or denied on the basis that Defendants KSK Construction Group, LLC, 125th & Lenox Owner, LLC and 125th & Lenox, LLC have been determined not to be negligent. As the Plaintiff has failed to make a prima facie showing of negligence against the movant and has also failed to raise a triable issue of fact in opposition to Movants' motion the Amended Complaint must be dismissed as a matter of law against Colgate Enterprise and Colgate Rentals.
With regard to the Third- Party Complaint. In order to show that Third- Party Plaintiff is entitled to contractual indemnification KSK must show that there is a contractual obligation to be indemnified by the Third-Party Defendant (Keshavarz v Murphy, 242 A.D.2d 680 [2d Dept 1997]) and that the contractual indemnification clause has been triggered by the Third-Party Defendant's conduct. In support of their contractual indemnification and breach of contract claims KSK refers to the Trade Contract Agreement between KSK and Colgate Enterprise Corp, Trade Contract Agreement between KSK and Colgate Rentals Corp., and the parties' EBTs. KSK additionally argues that CRC is estopped from pleading that a condition precedent has not been met that would require contractual indemnification pursuant to the parties' Trade Agreement Contract. It is undisputed that there is a valid contract between the parties that requires indemnification but it is clear that the contract establishes that the indemnification clause is triggered when there are "claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of the Trade Contractor's Work" (NY St Cts Elec Filing [NYSCEF] Doc No. 215 and 216). As there has been no evidence that there was any causal nexus between the work performed pursuant to the parties' trade agreements and the Plaintiffs injuries KSK fail to establish that the indemnification clause was triggered and has failed to raise a triable issue of fact that that would warrant the denial of the motion.
In addition, CRC's demonstrated nonliability to plaintiffs relieves CRC of any liability for contribution and common-law indemnity. "When... there is no evidence that a defendant was at fault, there is no reason why it should be required to pay a share of the damages." De Witt Properties, Inc. v. City of New York, 44 N.Y.2d 417, 377 N.E.2d 461, 406 N.Y.S.2d 16 (1978). "All common-law indemnification and contribution claims against [defendants] must be dismissed... [where defendants] are free from negligence." Higgins v. TST 375 Hudson, L.L.C., 179 A.D.3d 508, 119 N.Y.S3d 80 (1st Dep't 2020). Therefore, the motion for summary judgement in favor of Defendants/Third-Party Defendants CRC is granted in its entirety.
Motion sequence 13:
Defendants/Third-Party Plaintiffs KSK CONSTRUCTION GROUP, LLC, 125th & LENOX OWNER, LLC and 125th & LENOX, LLC ("KSK") move for an order granting summary judgment in their favor against the Plaintiff, dismissing the complaint and any and all claims, crossclaims and counterclaims against them. KSK further moves for an order granting summary judgment in favor of KSK on their claims/crossclaims against defendant Bringing Best Management, LLC ("BBM") for Breach of Contract in failing to procure excess insurance coverage as required. In support of this application KSK offers the pleadings, the parties EBT transcripts, the Trade agreement Contract between KSK and BBM, and the Insurance carrier tender letter.
Plaintiff cross moves for summary Judgment of the issue of liability against KSK and in support of their motion Plaintiff offers the pleadings, EBT transcripts from Plaintiff, Ayverdi, Butler, and Garcia, photos, video, Plaintiff s affidavit, the Affidavit of Robert Fuchs, the Trade agreement Contract between KSK and BBM, the Trade agreement Contract between KSK and Owner, KSK Construction Site Daily Activities Logs, and a Google Image. Plaintiff argues that the evidence offered establishes that KSK was negligent in the placing of and maintenance of the ramp which resulted in the Plaintiffs alleged injuries.
KSK argues in support of their motion and in opposition to Plaintiffs cross-motion that that KSK did not owe a legal duty to Plaintiff and further argues that Plaintiff cannot establish the elements of negligence. It is undisputed the Plaintiff was a pedestrian who was allegedly injured while walking on a temporary construction ramp. KSK asserts that as Plaintiff is a non-contracting third party KSK did not owe a duty to the Plaintiff. A threshold question in a negligence action is whether the defendant owes a duty of care to the plaintiff (see Espinal v Melville Snow Contrs., 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 [2002]). A contractor hired to perform work is generally not liable in tort to a non-contracting third-party when he or she breaches a contract and said breach causes injury to that third party (see Church v Callanan Indus., 99 N.Y.2d 104, 782 N.E.2d 50, 752 N.Y.S.2d 254 [2002]). However, the Court of Appeals has identified three exceptions to the general rule: "(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Espinal v Melville Snow Contrs., 98 N.Y.2d at 140 [internal quotation marks and citations omitted], Foster v Herbert Slepoy Corp., 76 A.D.3d 210, 213, 905 N.Y.S.2d 226 [2010]); Izzo v Proto Constr. & Dev. Corp., 81 A.D.3d 898, 899 [2d Dept 2011]). Plaintiff argues here that as a general contractor KSK falls into the exception. KSK alleges that KSK was not a general contractor under the meaning of the law. KSK asserts that they did not perform, control, or supervise any of the work that allegedly resulted in the Plaintiff s injuries. "The primary objective of a general contractor is to keep the project on schedule and to coordinate the work among subcontractors in order to avoid costly delays in the completion of the project" (Matter of Ovadia v. Off. Of Indus. Bd. Of Appeals, 19 N.Y.3d 138, 143, 969 N.E.2d 202, 946 N.Y.S.2d 86 [2012]). Plaintiff offers evidence in the form of EBT Testimony and KSK Construction Site Daily Activities Log to show that KSK acted as a general contractor. Here, Both KSK and Plaintiff have presented evidence that if viewed in a light most favorable to the non- movant raises a triable issue of fact. Therefore, KSK's motion for summary judgement is denied and Plaintiffs cross-motion for summary judgment as to liability is denied as they have failed to meet the requisite burden. The evidence presented by both parties is insufficient to establish entitlement to judgment as a matter of law.
With regard to the relief sought against BBM, in order to establish a claim for breach of contract movant must show (1) the existence of a contract between Third-Party Plaintiffs and Third-Party Defendant; (2) Third-Party Plaintiffs performance pursuant to the contract; (3) the Third-Party Defendant's breach of its contractual obligations; and (4) damages resulting from the breach (see Dean Builders Grp., P.O. v M.B. Din Constr., Inc., 186 A.D.3d 1612, 1614 [2d Dept 2020]; Junger v John V. Dinan Assocs., Inc., 134 A.D.3d 1428, 1430 [2d Dept 2018]). It is undisputed that the contract exists, and it is undisputed that there was performance of the contract. KSK alleges that BBM breached the contract by failing to procure the additional umbrella policy however BBM asserts that the contract does not require them to name KSK or the owners as additional insureds as written in section 9.1 of the agreement. After review of the contract, it is noted that the contract is specific as to the type of coverage that is required however, said provision does not specifically direct that the owner, contract manager or other entity should be named as additional insured (see NY St Cts Elec Filing [NYSCEF] Doc No. 252). As there is some ambiguity as to whether an umbrella policy was properly maintained the Third- Party Plaintiff has failed to establish entitlement to judgment as a matter of law as the issues raised by the Third- Party Defendant are triable issues of fact that remain. Therefore, it is
ORDERED, that Defendants/Third-Party Defendants COLGATE ENTERPRISE CORP, and COLGATE RENTALS CORP, motion for an order of summary judgment dismissing the Amended Complaint and Third-Party Complaint and any all claims and crossclaims against Colgate Enterprise Corp, and Colgate Rentals Corp, is GRANTED. It is further, ORDERED, that Defendants/Third-Party Plaintiffs KSK CONSTRUCTION GROUP, LLC, 125th & LENOX OWNER, LLC and 125th & LENOX, LLC motion for an order of Summary Judgment dismissing Plaintiffs complaint and any and all claims, crossclaims and counterclaims against them is DENIED. It is further, ORDERED, that Defendants/Third-Party Plaintiffs KSK CONSTRUCTION GROUP, LLC, 125th & LENOX OWNER, LLC and 125th & LENOX, LLC motion for an order of Summary Judgment on their claims/crossclaims against defendant Bringing Best Management, LLC, is DENIED; It is further, ORDERED, that Plaintiff MELISSA WIGFALL motion for an order of Summary Judgment in her favor granting partial summary judgment against defendants KSK CONTRUCTION GROUP, LLC, 125TH & LENOX OWNER, LLC., and 125th & LENOX, LLC is DENIED. It is further.
The foregoing shall constitute the decision and order of this court.