Cabral v. The Rockefeller Univ.
| Docket Number | Index No. 156724/2016,595221/2017,595627/2021,Motion Seq. No. 015 |
| Decision Date | 31 May 2023 |
| Citation | 2023 NY Slip Op 31834 (U) |
| Parties | CHRISTOPHER CABRAL, JAIME CABRAL, Plaintiff, v. THE ROCKEFELLER UNIVERSITY, TURNER CONSTRUCTION COMPANY, Defendant. THE ROCKEFELLER UNIVERSITY, TURNER CONSTRUCTION COMPANY Plaintiff, v. THE PRINCE MANUFACTURING COMPANY Defendant. THE ROCKEFELLER UNIVERSITY, TURNER CONSTRUCTION COMPANY Plaintiff, v. NORTHERN TOOL & EQUIPMENT CATALOG COMPANY, LLC, NORTHERN TOOL & EQUIPMENT CATALOG HOLDINGS, INC., NORTHERN TOOL & EQUIPMENT COMPANY, INC., NORTHERN TOOL & EQUIPMENT PARTS, LLC. Defendant. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 015) 605, 606, 607, 608, 609, 610, 611,612, 613, 614 615, 616, 617, 618, 619, 620, 621,622, 623, 624, 625, 626 627, 628, 629, 632, 635, 637, 638, 639, 640, 641,642, 643, 644, 645, 646, 647, 648, 649, 650, 651,652, 653, 654, 655, 656,657,658 were read on this motion to/for JUDGMENT - SUMMARY.
On August 8, 2016, at 10:30 a.m., Plaintiff, Christopher Cabral (Cabral) was struck in the face when a hydraulic piston, being used as part of a large mechanism to pull a mooring arm and whaler beam in a northerly direction up the East River alongside the FDR Parkway, broke or malfunctioned. Cabral was an Ironworker who was part of a gang for steel subcontractor New York City Constructors (NYCC).
The accident occurred at the Rockefeller University (RU) extension project located at 1228-1230 York Avenue at 63rd through 66th Streets, between York Avenue and FDR Drive in Manhattan. RU is the owner of the construction site. RU retained Turner Construction Company (Turner) as the general contractor, who then subcontracted with various trades to construct a modular building above the FDR on the Upper East Side. To move the modules, Turner subcontracted with Banker Steel, who subcontracted with NYCC. NYCC used a barge crane that they pulled up the East River using tugboats. The barge was connected by a mooring arm to a whaler beam that sat on the land east of the FDR roadway. NYCC then used a hydraulic piston, a Prince F500, to move the whaler beam laterally north and south to reposition the crane to set the modules. On each end of the hydraulic piston were clevis ears, that contained clevis pins.
The Prince Manufacturing Company (Prince) manufactured the hydraulic piston. RU and Turner allege that the Prince F500 hydraulic piston was defectively designed, and that Prince breached the implied warranty of merchantability by producing a product that was not fit for its intended use and reasonably foreseeable purpose. Further, they allege that Prince failed to warn users of the inherent and unobservable dangers of the product, and assert causes of action for common law indemnity, contractual indemnity, and for failure to procure insurance. Prince asserts counterclaims against RU and Turner for indemnity and contribution.
Second third-party defendants Northern Tool &Equipment Catalog Company, LLC Northern Tool &Equipment Catalog Holdings, Inc., Northern Tool &Equipment Company, Inc., Northern Tool &Equipment Parts, LLC (collectively, Northern Tool) are the distributor of this Prince F500 hydraulic piston, and RU and Turner brought a second Third-Party action against Northern Tool.
By decision and order dated February 18, 2022, the court granted Northern Tool's motion to dismiss (mot. seq. 10) the causes of action against it in the second third party complaint for common law indemnification and contribution, strict liability, and breach of implied warranty of merchantability, but declined to dismiss the causes of action against it for contractual indemnity and failure to procure insurance. The court also granted plaintiffs' motion to sever the remaining second third-party action (mot. seq. 9).
By the same order, the court denied RU and Turner's motion for partial summary judgment against Prince (mot. seq. 8), finding that while RU and Turner met theirprimafacie showing, the parties competing expert opinions and theories of liability "create questions of fact which must be determined at trial" and that" [t]he conflicting affidavits of the parties' experts present issues of credibility that cannot be resolved on a motion for summary judgment."
Additionally, by the same order the court granted plaintiffs' motion for partial summary judgment against RU and Turner (mot. seq. 11) to the extent of finding them liable under Labor Law § 241(6) for violations of Industrial Code §§ 23-1.5(c) (3) and 23-9.29(a) and denied the motion as plaintiffs' Labor Law §§ 240(1) and 200 claims.
By decision and order dated March 14, 2022, the court granted RU and Turner's motion to dismiss plaintiffs' Labor Law §§ 240(1) and 200 claims (mot.seq.12).
By decision and order dated September 30, 2022, the court denied RU and Turner's motion for leave to reargue the court's granting of summary judgment on plaintiffs' Labor Law § 241(6) claim and to reargue and renew Northern Tool's motion to dismiss their claims for indemnification and contribution, and for leave to re-argue plaintiffs' motion to sever the second third-party complaint (mot. seq. 13).
By the same order, the court granted Northern Tool's motion to dismiss the causes of action against it in the amended second third party complaint for common law indemnification and contribution, strict liability, and breach of implied warranty of merchantability, and again declined to dismiss the causes of action against it for contractual indemnity and failure to procure insurance (mot. seq. 14).
By decision and order dated May 18, 2023, the Appellate Division affirmed this Court's dismissal of RU and Turner's claim for common law contribution but found that they adequately pleaded a cause of action for common law indemnity against Northern Tool. Cabral v Rockefeller Univ., 2023 N.Y. Slip Op. 02738 (1st Dept 2023).
On October 11, 2022, Third-party defendant The Prince Manufacturing Company (Prince) moved for an order pursuant to CPLR 3212 awarding it summary judgment against defendants/third-party plaintiffs RU and Turner and dismissing the third-party complaint against it.
On December 20, 2022, RU and Turner cross moved for an order pursuant to CPLR 3211 dismissing Prince's counterclaims for common law indemnity and contribution.
The motions are consolidated herein for determination as set forth below.
To prevail on a motion for summary judgment, the movant must establish, prima facie, its entitlement to judgment as a matter of law, providing sufficient evidence demonstrating the absence of any triable issues of fact. CPLR 3212(b); Matter of New York City Asbestos Litig., 33 N.Y.3d 20, 25-26 (2019). If this burden is met, the opponent must offer evidence in admissible form demonstrating the existence of factual issues requiring a trial "conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient." Justinian Capital SPC v WestLB AG, 28 N.Y.3d 160, 168 (2016), quoting Gilbert Frank Corp. v Fed. Ins. Co., 70 N.Y.2d 966, 967 (1988). In deciding the motion, the evidence must be viewed in the "light most favorable to the opponent of the motion and [the court] must give that party the benefit of every favorable inference." O 'Brien v Port Auth. of New York and New Jersey, 29 N.Y.3d 27, 37 (2017).
Turner and RU object to Prince's use of several unsigned deposition transcripts as exhibits, arguing that they are inadmissible to support its motion. They additionally object that Prince fails to establish a foundation for the admission of several other exhibits.
"[W]hile a motion for summary judgment must be supported by evidentiary facts, they need not necessarily be in the form used at trial." State v Metz, 241 A.D.2d 192 (1st Dept 1998). Turner and RU are correct that, pursuant to CPLR 3116, unsigned deposition transcripts ordinarily are not admissible, with limited exceptions, in support of a motion for summary judgment. Pina v Flik Intern. Corp., 25 A.D.3d 772 (2d Dept 2006). However, as RU and Turner have relied on the same unsigned deposition transcripts in this case, annexing them as exhibits to prior motion papers, they have waived objections to the transcripts' admissibility for the purposes of this motion. See King v Brown, 72 Mic.2d 560 (App Term, 1st Dept 1972).
"[A]n attorney's affirmation may serve as a vehicle to introduce documentary evidence in support of a motion for summary judgment." Lewis v Safety Disposal System of Pennsylvania, Inc., 12 A.D.3d 324 (1st Dept 2004). Here, as Prince references its exhibits within its attorney affirmation, it has established a proper foundation for the purposes of this motion.
Prince contends that there was no contract between Prince and Turner or NYCC, necessitating dismissal of Turner's contractual indemnity and failure to procure insurance claims.
In opposition, RU and Turner argue that as Prince's denial of the existence of a contract is supported solely by an affirmation of Prince's defense counsel and not a witness with knowledge, it has failed to meet its burden to dismiss their contractual indemnity and failure to procure insurance claims.
In reply, Prince contends that as it is undisputed that NYCC purchased the piston, not RU or Turner, and as they fail to offer proof to rebut the lack of a contract, their contractual indemnity and failure to procure insurance claims should be dismissed.
While Prince asserts the lack of existence of a...
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