Christmann v. BSF Realty LLC

• Decision Date: 12 September 2022
• Docket Number: Index No. 502571/18
• Citation: 2022 NY Slip Op 33265 (U)
• Court: New York Supreme Court
• Parties: DANIEL CHRISTMANN, Plaintiff, v. BSF REALTY LLC, PARAMOUNT FRAMERS, INC., and PARAMOUNT FRAMERS NY, INC., Defendants. BSF REALTY LLC, Third-Party Plaintiff, v. WNW & SONS PLUMBING & HEATING, INC., Third-Party Defendant.

2022 NY Slip Op 33265(U)

DANIEL CHRISTMANN, Plaintiff,
v.
BSF REALTY LLC, PARAMOUNT FRAMERS, INC., and PARAMOUNT FRAMERS NY, INC., Defendants.

BSF REALTY LLC, Third-Party Plaintiff,
v.
WNW & SONS PLUMBING & HEATING, INC., Third-Party Defendant.

Index No. 502571/18

Supreme Court, Kings County

September 12, 2022

Unpublished Opinion

KAREN B. ROTHENBERG, JUSTICE

The following e-filed papers read herein:

NYSCEF Doc Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed	246-276,283-295,299-314
Opposing Affidavits (Affirmations)	279-282,315,318-319,322-323, 337-340
Affidavits/Affirmations in Reply	320,321,343, 344

Defendant BSF Realty LLC (BSF) moves (M.S.9) for an order, pursuant to CPLR 3211 and 3212, (1) granting summary judgment on its cross claims against defendants

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Paramount Framers, Inc. (Paramount Inc.) and Paramount Framers NY, Inc., (Paramount NY); (2) dismissing all cross claims by Paramount Inc. and Paramount NY against BSF; (3) granting summary judgment to BSF on its third-party claims against third-party defendant WNW & Sons Plumbing & Heating, Inc. (WNW); (4) dismissing WNW's counterclaims against BSF; (5) ordering WNW and Paramount Inc. and Paramount NY to each pay BSF's attorney fees; and (6) for an order extending the time to move for summary judgment it Paramount asserts that the hold harmless agreements were fraudulent.

WNW cross-moves (M.S. 10) for an order, pursuant to CPLR 3212(a), granting summary judgment dismissing the complaint of plaintiff Daniel Christmann ("plaintiff), as well as any and all cross claims and third-party claims against WNW as there exists no triable issue of material fact regarding WNW's liability.

Paramount NY moves (M.S. 11) for an order (1) pursuant to CPLR 3212 (a) and Part C, paragraph 6, of this Court's Uniform Civil Term Rules, extending the time to move for summary judgment and (2) pursuant to CPLR § 3212, granting Paramount NY summary judgment dismissing all claims against it, including the cross claims of BSF and Paramount Inc., and counterclaims of WNW.

Facts

On January 2, 2018, while working as a project manager for WNW, plaintiff fell into an unguarded floor opening in the basement of premises located at 1536 52nd Street, Brooklyn, New York (the premises). The premises was owned by BSF and was undergoing renovations converting it into a synagogue/community center. BSF contracted with Paramount Inc. as the general contractor on the project, and Paramount Inc., in turn, hired

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WNW to perform the plumbing work in the building. Plaintiffs accident occurred when he entered the mikvah room, proceeded into a closet, and took one step and fell into a pit/opening in the floor. According to plaintiff, prior to his accident, the floor in the closet area had been covered with sturdy plywood, and he never realized that the plywood was merely a temporary cover for the openings in the floor. He could not see the opening prior to falling because there was no lighting in the closet.

Plaintiff commenced an action against BSF to recover damages for his injuries sustained in the fall. He subsequently added defendants Paramount Inc. and Paramount NY to the action. In his amended complaint, plaintiff alleged Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims. BSF subsequently commenced a third-party action against WNW for indemnification.

Discussion

To prevail on a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient admissible evidence to demonstrate the absence of any material issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; Jacobsen v New York City Health and Hospitals Corp., 22 N.Y.3d 824, 833 [2014]. On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party (Jacobsen, 22 N.Y.3d at 833; William J. Jenack Estate Appraisers and Auctioneers, Inc. v Rabizadeh, 22 N.Y.3d 470, 475 [2013]). If the moving party fails to make a prima facie showing the motion will be denied, regardless of the sufficiency of the non-movant's papers (see Winegrad v New York Univ. Med. Center, 4 N.Y.2d 851, 853 [1985]).

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BSF's Motion (M.S 9)

BSF seeks summary judgment on its cross claims against Paramount Inc. and Paramount NY, and on its third-party claims against WNW. In its answer BSF asserted cross claims against Paramount Inc. and Paramount NY for common law indemnification, contribution, contractual indemnification and the failure to procure insurance. In its third-party action against WNW, BSF asserted the same claims. However, the court notes that BSF's motion only pertains to its contractual indemnification and breach of contract for failure to procure insurance claims against Paramount Inc., Paramount NY and WNW, and fails to address common law indemnification and contribution. Accordingly, this decision will address only those claims.

BSF's Cross Claims Against Paramount Inc. and Paramount NY

BSF argues that it entered into an agreement, dated August 3, 2017, pursuant to which it retained Paramount Inc. and/or Paramount NY to serve as general contractor on the project. Although only Paramount Inc. 's name is set forth in the contract, BSF contends that the two Paramount entities not only have similar names, but the principal (Martin Glauber) and corporate registry addresses are the same. BSF contends that it entered into hold harmless agreements with Paramount Framers^[1] and that Paramount Framers knew that BSF required it and its subcontractors to enter into these agreements. In support of its motion, BSF submits a sworn affidavit from BSF owner, Yaakov Singer, in which he attests that although he never personally witnessed anyone on behalf of WNW or Paramount

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Framers sign the hold harmless agreements, as the agreements were already signed when they were provided to him, but he believes both WNW and Paramount Framers agreed to hold BSF harmless and to indemnify BSF. Specifically, the contract between BSF, as the owner, and Paramount Inc., as the contractor, contained the following indemnification provision:

To the fullest extent permitted by law, the contractor [Paramount Framers, Inc.] shall indemnify and hold harmless the Owners [BSF] and managers and employee of either of them as well as any entity the owner it required to indemnify from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of the contractors and Subcontractor's Work, provided that such claim, damage, loss or expense is attributable to bodily injury . .. cause in whole or in part by negligent acts or omissions of the contractor or Subcontractor, the Subcontractor's Sub-subcontractors, anyone directly or indirectly employed by them ... regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder (emphasis added).

The agreement also required Paramount Inc. to procure general liability and excess insurance (total of $5,000,000), and name BSF as an additional insured under the primary policy (id).

In opposition, Paramount NY argues that BSF's motion is procedurally defective as it lacks the required statement of undisputed facts pursuant to Uniform Rule 202.8-g. Although there is some authority for that position, there is no evidence that the noncompliance has prejudiced Paramount NY, and the court will excuse this failure under CPLR 2001 (see Carino v Mertens, 2022 NY Slip Op 50525(U) [Sup Ct, NY County 2022]; Bah v City of New York, 2022 NY Slip Op 31885(U) [Sup Ct, NY County 2022]; Disarli v TEFAF N.Y., LLC, 2022 NY Slip Op 30029 [U] [Sup Ct, Kings County 2022]; Meserole Hub LLC v Rosenzweig, 71 Misc.3d 1222[A], 2021 NY Slip Op 50463[U] [Sup Ct, Kings County 2021]).

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The affirmation in support of the motion submitted by BSF's counsel includes a section entitled "Facts" with paragraphs numbered 19-28 delineating the facts supporting BSF's motion. Accordingly, the "court exercises its discretion to overlook such minor, nonprejudicial defects under CPLR 2001 and CPLR 2101" (Birds & Bubbles NYC LLC v 100 Forsyth LLC, 2022 NY Slip Op 50106(U), [Sup. Ct, NY County 2022]).

Paramount NY further argues that BSF's summary judgment motion should be dismissed as against it pursuant to CPLR 3215 (c) since plaintiff failed to seek a default judgment against said defendant within one year after its default in answering plaintiffs amended complaint. To the extent Paramount NY argues that the plaintiffs complaint and BSF's cross claims as against it should be dismissed as abandoned pursuant to CPLR 3215 (c), this issue was previously raised in its prior cross motion (mot. seq. no. 5), which was denied by Justice Knipel's March 23, 2021 order (NYSCEF Doc No. 241). That determination became law of the case thereby precluding this court's consideration of that issue (see Fudge v North Shore-Long Is. Jewish Health Servs. Plainview & Manhasset Hosps., 117 A.D.3d 783, 785 [2d Dept 2014]; Carbon Capital Mgt, LLC, v American Express Co., 88 A.D.3d 933, 935-936 [2d Dept 2011]).

As to the merits of BSF's motion as against Paramount NY, BSF has failed to establish, as a matter of law, that at the time of the accident, Paramount Inc. and Paramount NY were one and the same entity or were mere alter egos(see generally Mauro v Zorn Realties, Inc., 206 A.D.3d 645 [2d Dept 2022; see also Salinas v 64 Jefferson Apts., LLC, 170 A.D.3d 1216, 1218-1219 [2d Dept 2019]; Samuel v Fourth Ave. Assoc, LLC, 75 A.D.3d 594, 595 [2d Dept 2010] [holding that "[a] mere showing that the entities are related is

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insufficient [to establish an alter ego relationship] where a defendant cannot demonstrate that one of the...