Hamel v. Park Ave. Armory

• Decision Date: 20 November 2020
• Docket Number: Index No. 450647/2018
• Citation: 2020 NY Slip Op 33895 (U)
• Court: New York Supreme Court
• Parties: VERONICA HAMEL, Plaintiff v. PARK AVENUE ARMORY, SEVENTH REGIMENT ARMORY CONSERVANCY, INC., CITY OF NEW YORK, OLD VIC THEATRE, STEWART LAING, MIMI JORDAN SHERIN, MCLAREN ENGINEERING GROUP, ELITE PRODUCTION CONSULT, LIGHTING SYNDICATE LLC, KEVIN BYRNE ARCHITECTS, P.C., OLD VIC THEATRE COMPANY (THE CUT) LIMITED, and HUDSON SCENINC STUDIO, Defendants

2020 NY Slip Op 33895(U)

VERONICA HAMEL, Plaintiff
v.
PARK AVENUE ARMORY, SEVENTH REGIMENT ARMORY CONSERVANCY, INC.,
CITY OF NEW YORK, OLD VIC THEATRE, STEWART LAING,
MIMI JORDAN SHERIN, MCLAREN ENGINEERING GROUP,
ELITE PRODUCTION CONSULT, LIGHTING SYNDICATE LLC,
KEVIN BYRNE ARCHITECTS, P.C., OLD VIC THEATRE COMPANY (THE CUT) LIMITED,
and HUDSON SCENINC STUDIO, Defendants

Index No. 450647/2018

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

RECEIVED: November 25, 2020
November 20, 2020

NYSCEF DOC. NO. 396

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

Plaintiff sues to recover damages for personal injuries sustained April 14, 2017, when she fell while crossing and descending from a rotating stage on premises owned by defendant City of New York and leased to defendant Park Avenue Armory, Seventh Regiment Armory Conservancy, Inc., as she was proceeding to her seat for a theatrical performance there. Defendant McLaren Engineering Group provided construction consulting services, defendant Elite Production Consult installed seating, a

Page 2

preparatory stage, and drapes, defendant Lighting Syndicate provided lighting, sound, carpentry, and props, and defendant Hudson Scenic Studio provided scenery for the play that plaintiff attended. The court (Frank, J.) dismissed the complaint and all cross-claims against the City in an order dated December 19, 2019. In a stipulation ordered March 19, 2020, plaintiff, Lighting Syndicate, and Hudson Scenic Studio discontinued their claims or cross-claims against defendant Old Vic Theatre Company (The Cut) Limited, which licensed the play. Defendants Laing, Sherin, and Kevin Byrne Architects, P.C., have not appeared.

Lighting Syndicate moves for summary judgment dismissing the complaint and all cross-claims against Lighting Syndicate, C.P.L.R. § 3212(b), and for sanctions against plaintiff. C.P.L.R. § 8303-a; 22 N.Y.C.R.R. § 130-1.1. Elite Production Consult cross-moves for summary judgment dismissing the complaint arid all cross-claims against Elite Production Consult. C.P.L.R. § 3212(b). The parties stipulated on the record August 26, 2020, that all the photographs in the record, on which plaintiff's expert engineer based his opinion, were authenticated and admissible for purposes of the motion and cross-motion.

Page 3

II. ELITE PRODUCTION CONSULT'S CROSS-MOTION FOR SUMMARY JUDGMENT

A. Permissibility

As set forth above, Elite Production Consult cross-moves against Lighting Syndicate's motion for summary judgment motion and seeks summary judgment dismissing the complaint and all cross-claims against Elite Production Consult. Lighting Syndicate's motion seeks relief that includes dismissal of Elite Production Consult's cross-claims for implied indemnification and contribution, based on Lighting Syndicate's negligence, and for breach of a contract against Lighting Syndicate.

C.P.L.R. § 2215's provision that a "party may serve upon the moving party a notice of cross-motion demanding relief" refers to relief against the moving party and thus does not allow a cross-motion as a vehicle for relief against a non-moving party. Puello v. Georges Units, LLC, 146 A.D.3d 561, 561 (1st Dep't 2017); Hennessey-Diaz v. City of New York, 146 A.D.3d 419, 420 (1st Dep't 2017); Asiedu v. Lieberman, 142 A.D.3d 858, 858 (1st Dep't 2016); Genger v. Genger, 120 A.D.3d 1102, 1103 (1st Dep't 2014). Although C.P.L.R. § 2215(b) provides that the "relief need not be responsive to that demanded by the moving party" and thus may relate to distinct claims or defenses, a cross-motion still must demand relief against the moving party.

Page 4

Elite Production Consult's cross-motion against Lighting Syndicate's motion is permissible only to the extent that it seeks summary judgment dismissing Lighting Syndicate's cross-claims against Elite Production Consult for implied indemnification and contribution, because Lighting Syndicate is the moving party.

B. Merits

Lighting Syndicate may obtain implied indemnification against Elite Production Consult only if Lighting Syndicate establishes that its negligence did not contribute to plaintiff's injury and that Elite Production Consult's negligence did contribute. McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 378 (2011); Imbriale v. Richter & Ratner Contr. Corp., 103 A.D.3d 478, 479-80 (1st Dep't 2013); Naughton v. City of New York, 94 A.D.3d 1, 10 (1st Dep't 2012). Elite Production Consult supports its cross-motion with the deposition testimony by Mark Mina, Elite Production Consult's Chief Executive Officer, that the only tasks for which Elite Production Consult was responsible in the production at the Park Avenue Armory were installing the bleacher seats, the preparatory stage, and the perimeter drapes. According to Mina, Elite Production Consult's only responsibility regarding the rotating stage was to dismantle it after the

Page 5

production concluded; Elite Production Consult was not responsible for installing the rotating stage, its handrails, or the surrounding floor.

Lighting Syndicate does not present any opposition to Elite Production Consult's motion seeking dismissal of Lighting Syndicate's implied indemnification and contribution claims. Co-defendants' witnesses denied knowledge of Elite Production Consult or its function regarding the production. This record demonstrates that Elite Production Consult's actions or omissions did not contribute to plaintiff's injury and thus warrants dismissal of Lighting Syndicate's implied indemnification and contribution claims against Elite Production Consult. Astrakan v. City of New York, 184 A.D.3d 444, 445 (1st Dep't 2020); Higgins v. TST 375 Hudson, L.L.C., 179 A.D.3d 508, 511 (1st Dep't 2020); Canty v. 133 E. 79th St., LLC, 167 A.D.3d 548, 549 (1st Dep't 2018).

III. LIGHTING SYNDICATE'S MOTION FOR SUMMARY JUDGMENT

Lighting Syndicate contends first that, as a contractor, it is not liable because it was entitled to...