Harris v. City of N.Y.

• Court: New York Supreme Court
• Writing for the Court: HON. CAROL R. EDMEAD Justice
• Citation: Harris v. City of New York, 2020 NY Slip Op 32989(U), INDEX NO. 159346/2014, Third-Party Index No. 595628/2014 (N.Y. Sup. Ct. Sep 11, 2020)
• Decision Date: 11 September 2020
• Docket Number: INDEX NO. 159346/2014,Third-Party Index No. 595628/2014
• Parties: GARY HARRIS, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF DESIGN AND CONSTRUCTION, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, SAFETY AND QUALITY PLUS, INC., Defendant. THE CITY OF NEW YORK Plaintiff, v. SAFETY AND QUALITY PLUS, INC. Defendant.

2020 NY Slip Op 32989(U)

GARY HARRIS, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF DESIGN AND CONSTRUCTION,NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, SAFETY AND QUALITY PLUS, INC., Defendant.

THE CITY OF NEW YORK Plaintiff, v. SAFETY AND QUALITY PLUS, INC. Defendant.

INDEX NO. 159346/2014

Third-Party Index No. 595628/2014

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART IAS MOTION 35EFM

September 11, 2020

NYSCEF DOC. NO. 231

PRESENT: HON. CAROL R. EDMEAD Justice

MOTION DATE 9/16/2020

MOTION SEQ. NO. 004 005

DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 004) 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 176, 177, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 216, 217, 219, 226, 227 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 005) 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 193, 194, 195, 196, 197, 198, 212, 213, 214, 215, 218, 221, 222, 223, 224, 225, 228, 229 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.

Upon the foregoing documents, it is

ORDERED that the branch of Defendant New York City's (the City's) motion (Motion Seq. 004), pursuant to CPLR 3211, for summary judgment dismissing Plaintiff's Labor Law claims is granted to the extent that Plaintiff's Labor Law § 200 claims, Labor Law § 241 (6) claims pursuant to Industrial Code Sections 23-1.7(e)(1) and (e)(2) and Labor Law § 240 (1) claims abandoned by Plaintiff are all dismissed, and Plaintiff's remaining Labor Law § 241 (6) is severed and shall continue against the City; and it is further ORDERED that the branch of the City's motion (Motion Seq. 004), pursuant to CPLR 3211, for summary judgment on its Third-Party Complaint and crossclaims against Safety and Quality, Plus Inc. (SQP) for contractual indemnification is denied; and it is further

ORDERED that the branch of SQP's motion (Motion Seq. 005), pursuant to CPLR 3211, seeking summary judgment dismissing Plaintiff's complaint Labor Law claims against it is granted; and it is further

ORDERED that the branch of SQP's motion (Motion Seq. 005), pursuant to CPLR 3211, seeking summary judgment dismissing the City's Third-Party Complaint and crossclaims is granted to the extent that the City's claims for contribution and common-law indemnification are dismissed, and the City's contractual indemnification claim against SPQ is severed and shall continue; and it is further

ORDERED that the cross-motion of the City (Motion Seq. 005), pursuant to CPLR 3211, seeking summary judgment on its Third-Party Complaint and crossclaims against SQP for common law indemnification and contribution is denied; and it is further

ORDERED that the Clerk of the Court shall enter judgment accordingly; and it is further

ORDERED that the counsel for third-party defendant Safety and Quality, Plus Inc. shall serve a copy of this Order with Notice of Entry within twenty (20) days of entry on all parties.

NON FINAL DISPOSITION

MEMORANDUM DECISION

In this Labor Law action, the following motions are consolidated for disposition.

In Motion Seq. 004, defendant New York City ("the City")¹ moves, pursuant to CPLR 3212, for summary judgment dismissing Plaintiff Gary Harris' complaint against it, and summary judgment granting its third-party claims against defendant Safety and Quality Plus, Inc. (SQP) for contractual indemnification and defense, together with dismissal of all of SQP's crossclaims and counterclaims against the City.

In Motion Seq. 005, SQP moves, pursuant to CPLR 3211, for summary judgment dismissing Plaintiff's complaint against it and for summary judgment dismissing the City's third-party complaint and crossclaims. City cross-moves, pursuant to CPLR 3211, for summary judgment granting its crossclaims for common law indemnification and contribution from SQP.

BACKGROUND FACTS

Defendant New York City Department of Design and Construction (NYCDDC) owns Project Contract MED-609 (Project) which involves the installation of trunk water mains throughout Manhattan, including at 9^th Avenue and 48^th Street (Site) where the accident here occurred. NYCDDC engaged Waterworks JV (Waterworks) as the General Contractor for the Project. Through a separate subcontract agreement (Subcontract Agreement), Waterworks engaged SQP as safety consultant (NYSCEF doc No. 157).

Plaintiff is a timberman employed by Waterworks. On December 3, 2013, after breaking for lunch, Plaintiff alleges that he was instructed to begin work on a manhole located at the northwest corner of the Site (NYSCEF doc No. 150, p. 66:2-5). To get to the manhole, Plaintifftestified that he had to travel along a 10x30 feet trench (Id., p. 67:1-8) by walking on 12x12 beams called walers (Id., p. 68:3-4). These walers form part of the trench system and were located below street level (Id., p. 78:10). After reaching the manhole and starting to work on it, Plaintiff alleges that he was later instructed to retrieve a chainsaw across the street so he had to climb up the manhole again and walk back across the same walers (Id., p. 77:2-12). Upon reaching the end of the walers to exit the trench, Plaintiff claims that his right foot tripped on a 2x4 piece of lumber which served as a top rail (Id., p. 81:17) and which was affixed to the trench's railing four feet above the ground on one side and resting on the ground on the other side (Id., p. 82:7-13). As a result, Plaintiff fell to the ground and sustained injuries (Id., p. 83:4).

Plaintiff commenced this action on September 23, 2014 against the City Defendants asserting claims for negligence and seeking damages under New York Labor Law §§ 200 and 241 (6).² On December 15, 2014, the City brought a third-party complaint against SQP for contractual defense, indemnification and contribution. Plaintiff later filed an amended complaint to join SQP as an additional defendant.

The City now moves, by way of summary judgment, to dismiss Plaintiff's complaint against it and grant its third-party claims for contractual indemnification and defense against SQP, together with dismissal of SQP's crossclaims and counterclaims against it (Motion Seq. 004). Both Plaintiff and SQP oppose.

Separately, SQP seeks an order granting summary judgment dismissing both Plaintiff's complaint and the City's third-party complaint and crossclaims against it (Motion Seq. 005). Plaintiff and the City oppose. The City cross-moves for summary judgment against SQP for common-law indemnification and contribution, a relief that the City did not seek in its own motionfor summary judgment. SQP opposes the cross-motion on the ground that it was filed late and raises arguments that the City should have raised in its own motion for summary judgment. In reply, the City argues that its cross-motion is timely as it previously filed a motion for summary judgment seeking relief that is "nearly identical" to that sought in the cross-motion (NYSCEF doc No. 228).

DISCUSSION

Applicable Standards

Summary Judgment

Summary judgment is granted when "the proponent makes '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,' and the opponent fails to rebut that showing" (Brandy B. v Eden Cent. School Dist., 15 NY3d 297, [Ct App 2010], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [Ct App 1986]). Once the proponent has made a prima facie showing, the burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006], citing Zuckerman v City of New York, 49 NY2d 557, 562 [Ct App 1980]; see also DeRosa v City of New York, 30 AD3d 323, 325 [1st Dept 2006]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [Ct App 1978]; Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 [1st Dept 2002]). When the proponent fails to make a prima facie showing, the court must deny the motion, "'regardless of the sufficiency of the opposing papers'" (Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [Ct App 2008] quoting Alvarez, 68 NY2d at 324).

Here, both the City and SQP bear the burden of making a prima facie showing of entitlement to a judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Bellinson Law, LLC v Iannucci, 35 Misc 3d 1217[A], 951 N.Y.S.2d 84, 2012 NY Slip Op 50729[U] [Sup. Ct., N.Y. County 2012], aff d, 102 AD3d 563 [1st Dept 2013], citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact (Alvarez, supra, Zuckerman v City of New York, 49 N.Y.2d 557 [1980] and Santiago v Filstein, 35 AD3d 184 [1st Dept 2006]).

The function of a court in reviewing a motion for summary judgment "is issue finding, not issue determination, and if any genuine issue of material fact is found to exist, summary judgment must be denied" (People ex rel. Cuomo v Greenberg, 95 AD3d 474 [1st Dept 2012]). Where "credibility determinations are required, summary judgment must be denied" (Id.). Thus, on a motion for summary judgment, the court is not to determine which party presents the more credible argument, but whether there exists a factual issue, or if arguably there is a genuine issue of fact (DeSario v SL Green Management LLC, 105 AD3d 421, [1st Dept 2013] [holding given the conflicting deposition testimony as to what was said and to whom, issues of credibility should be resolved at trial]).

Labor Law...