Abrams v. ESRT 112 W. 34th St., L.P.

• Decision Date: 13 January 2023
• Docket Number: Index Nos. 158337/2017,565708/2019,Motion Seq. Nos. 004,005
• Citation: 2023 NY Slip Op 30196 (U)
• Parties: CHRISTOPHER ABRAMS, Plaintiff, v. ESRT 112 WEST 34TH STREET, L.P., EMPIRE STATE REALTY TRUST, INC., AMERICON CONSTRUCTION INC., HITT CONTRACTING, INC., Defendant. ESRT 112 WEST 34TH STREET, L.P., EMPIRE STATE REALTY TRUST, INC., AMERICON CONSTRUCTION INC., HITT CONTRACTING, INC., Plaintiff, v. PYRAMID FLOOR COVERING, INC., TITAN INDUSTRIAL SERVICES CORP. Defendant.
• Court: New York Supreme Court

2023 NY Slip Op 30196(U)

CHRISTOPHER ABRAMS, Plaintiff, v. ESRT 112 WEST 34TH STREET, L.P., EMPIRE STATE REALTY TRUST, INC., AMERICON CONSTRUCTION INC., HITT CONTRACTING, INC., Defendant.

ESRT 112 WEST 34TH STREET, L.P., EMPIRE STATE REALTY TRUST, INC., AMERICON CONSTRUCTION INC., HITT CONTRACTING, INC., Plaintiff, v. PYRAMID FLOOR COVERING, INC., TITAN INDUSTRIAL SERVICES CORP. Defendant.

Index Nos. 158337/2017, 565708/2019, Motion Seq. Nos. 004, 005

Supreme Court, New York County

January 13, 2023

Unpublished Opinion

PRESENT: HON. FRANCIS A. KAHN, III, Justice

DECISION + ORDER ON MOTION

HON FRANCIS A. KAHN, III, JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 004) 146, 147, 148, 149, 150, 151, 152, 153, 154 155, 156, 157, 158, 159, 170, 172, 181, 184, 185, 186, 188 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.

The following e-filed documents, listed by NYSCEF document number (Motion 005) 160, 161, 162, 163, 164, 165, 166, 167, 168 169, 171, 173, 174, 175, 176, 177, 178, 179, 180, 182, 183, 187 were read on this motion to/for JUDGMENT - SUMMARY. Upon the foregoing documents, the motions and cross-motion are determined as follows:

Plaintiff commenced this action to recover for injuries allegedly sustained on May 15, 2017, when he tripped and fell at a construction site located at 112 West 34th Street/111 West 33rd Street, New York, New York. On the day of the incident, Plaintiff was employed by non-party Ess and Vee Acoustical as a carpenter. Plaintiff claims he was caused to fall by a rocky, chopped-up floor that was partially covered with sheets of plywood. In the compliant, Plaintiff pled causes of action based upon violations of Labor Law §§240[1], 241 [6] and 200 as well as a claim of common-law negligence.

Defendants ESRT 112 West 34TH Street, L.P. ("ERST") and Empire State Realty Trust ("Empire") answered and pled crossclaims against Defendants Americon Construction Inc. ("Americon") and Hitt Contracting, Inc. ("Hitt"), for common-law indemnification and contribution, contractual indemnification and for breach of contract for failure to obtain insurance. Americon and Hitt answered separately but did not plead any crossclaims.

Thereafter, ERST, Empire, Americon and Hitt jointly commenced a third-party action against Third-Party Defendants Pyramid Floor Covering, Inc. ("Pyramid") and Titan Industrial Services Corp. ("Titan") for, inter alia, common-law indemnification and contribution, contractual indemnification and for breach of contract for failure to obtain insurance. Titan answered and pled counterclaims against ERST, Empire, Americon and Hitt for common-law and contractual indemnification. Pyramid answered and pled causes of action for common-law indemnification and contribution against Titan via crossclaims and against ERST, Empire, Americon and Hitt via counter claims. Defendants ERST, Empire, Americon and Hitt later stipulated to discontinue the third-party action against Pyramid.

Plaintiff filed a note of issue on December 17, 2021. By status conference order dated January 28, 2022, this Court extended the time to file dispositive motions until May 28, 2022.

Now, Titan moves (Motion Seq No 4) for summary judgment dismissing the third-party complaint and all crossclaims. Americon and Hitt oppose the motion. ERST and Empire move (Motion Seq No 5) for summary judgment against Americon and Hitt for contractual indemnification and breach of contract for failure to obtain insurance. ERST and Empire also seek summary judgment dismissing all crossclaims and counter claims asserted against them. Americon and Hitt oppose the motion and cross-move for summary judgment dismissing all crossclaims and counter claims against Hitt.

"'[T]he proponent of a summary judgment motion 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'" (Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 [1993], citing Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]). Failure to make the requisite showing requires denial of the motion, regardless of the sufficiency of the opposition papers (see id. at 324; see also Smalls v AJ1 Industries. Inc., 10 N.Y.3d 733, 735 [2008]). Once aprima facie demonstration has been made, the burden shifts to the opponent to produce evidentiary proof that establishes the existence of a material issues of fact (see eg Giuffrida v Citibank Corp., 100 N.Y.2d 72 [2003]; Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). "

On the branch of Titan's motion to dismiss the contractual indemnification claim against it, this cause of action is dependent upon the specific language of the contract (see Ging v F.J Sciame Constr. Co., Inc., 193 A.D.3d 415, 418 [1st Dept 2021]; Anderson v United Parcel Service, 194 A.D.3d 675, 678 [2d Dept 2021]). "The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances" (George v Marshalls of MA, Inc., 61 A.D.3d 925, 930 [2d Dept 2009]; see also Wai Cheung v 48 Tenants' Corp., 192 A.D.3d 503 [1st Dept 2021]). Further, absent a legal duty to indemnify, an agreement containing that obligation must be strictly construed so as not to create an unintended responsibility (see eg Tanking v Port Auth., 3 N.Y.3d 486, 490 [2004]).

Section 4[h] of the terms and conditions of the contract between Americon and Titan which reads, in pertinent part, as follows:

To the fullest extent permitted by law, Subcontractor shall defend, indemnify and save harmless, Americon and/or any of its parent, affiliated or subsidiary entities, companies, corporations, partnerships, limited partnerships, limited liability partnerships, limited liability companies, firms, trusts, partners, officers, directors, members, trustees, agents, employees, successors and/or assigns (collectively "Agents") from and against any and all claims, demands, suits, actions, proceedings ... on account of bodily or personal injury . . . sustained by any person . . . directly or indirectly arising out of or in connection with or relating to the operations attempted operations, or failure to perform operations in connection with or pursuant to this Agreement, whether or not due or claimed to be due in whole or in part to the active, passive or concurrent negligence or fault of Subcontractor or its Subcontractors or agents or anyone directly or indirectly employed by any of them or anyone else for whose acts any of them may be liable and/or any other person or persons.

The above contract language obligated Titan to indemnify Americon not only in the case of their negligence, but also for acts "arising out of or resulting from any work and caused in whole or in part by any act or omission of Subcontractor" (see Licata v AB Green Gansevoort LLC, 158 A.D.3d 487, 490491 [1st Dept 2018]). Titan established with the deposition testimony of Plaintiff and Carl Casalino, Titan's Principal, that Americon Hitt created the condition that Plaintiff claims caused him to fall less than a week before the accident. The testimony also demonstrated that Americon Hitt, the general contractor on the project, was responsible for placing plywood over the rocky floor. Contrary to Americon's assertion, Casalino's testimony does not create an issue of fact. Casalino only acknowledged, when show a photograph of the condition, that Titan had performed that "type of demolition work" at the premises. But he also averred that Titan employees were last at the project three months before the accident. Since the...