McCoy v. Transport International Pool, Inc., 2008 NY Slip Op 32865(U) (N.Y. Sup. Ct. 9/17/2008)
| Citation | 2008 NY Slip Op 32865 |
| Decision Date | 17 September 2008 |
| Docket Number | 15389/06 |
| Parties | GREGORY McCOY, Plaintiff, v. TRANSPORT INTERNATIONAL POOL, INC., d/b/a GE CAPITAL MODULAR SPACE, Defendants. TRANSPORT INTERNATIONAL POOL, INC., d/b/a GE MODULAR SPACE f/k/a GE CAPITAL MODULAR SPACE, Third-party Plaintiff, v. DHL EXPRESS (USA), INC., d/b/a DHL EXPRESS, Third-party Defendant. |
| Court | United States State Supreme Court (New York) |
Plaintiff in the instant action claims that on March 15, 2005, he sustained serious injuries when he tripped and fell upon in exterior set of stairs connected to a modular office trailer situated on premises located at 460 12th Avenue in New York, New York. The aforementioned trailer was owned and supplied by defendant/third-party plaintiff TRANSPORT INTERNATIONAL POOL, INC., d/b/a GE CAPITAL MODULAR SPACE (hereinafter TRANS PORT) and leased to and utilized by the plaintiffs employer, third-party defendant, DHL EXPRESS (USA), INC., d/b/a DHL EXPRESS, (hereinafter DHL).
Third-party defendant DHL now moves this Court for summary judgment and dismissal of defendant/third-party plaintiff TRANSPORT'S action, as against them, pursuant to CPLR §3212, on the grounds that there are no triable issues of fact and defendant/third-party plaintiff TRANSPORT cannot establish a prima facie case against them. In support of their motion, third-party defendant DHL argues that the plaintiff has no right of recovery against them and that the third-party claims are barred by the exclusivity provision of the workers' compensation law. Specifically, third-party defendant DHL argues that the workers compensation law precludes third party contribution and indemnification claims unless the plaintiff has sustained a "grave injury", or the claim is "based upon a provision in a written contract entered into prior to the accident or occurrence, by which the employer has expressly agreed to contribution to, or indemnification of, the claimant or person asserting the cause of action, for the type of loss suffered." Third-party defendant DHL further contends that the plaintiff has not sustained a
"grave injury" as defined by the workers' compensation law, and that the language contained in the lease agreement contract between defendant/third-party plaintiff TRANSPORT and third-party defendant DHL is "generally worded", and as such, it was never intended to circumvent the provisions of the Workers' Compensation Law and it cannot be construed to usurp the provisions of the Workers' Compensation Law. Specifically, third-party defendant DHL argues that "the lease does not specifically state that the third-party plaintiff is entitled to be indemnified for injuries to the insured's employees in the course of their employment."
Defendant/third-party plaintiff TRANSPORT also moves this Court for an Order pursuant to CPLR §3212 granting them summary judgement dismissing both the plaintiffs complaint and third-party defendant DHL's counterclaims on the grounds that no issue of material fact exists and as such, defendant/third-party plaintiff TRANSPORT is entitled to judgement as a matter of law. Defendant/third-party plaintiff TRANSPORT also moves for a further Order pursuant to CPLR §3212, granting them summary judgement on their third-party action for indemnification and attorneys fees as against third-party defendant DHL. In support of their contention that the plaintiffs case against them should be dismissed, defendant/third-party plaintiff TRANSPORT argues hat there is no proof that they caused, created or had any notice, either actual or constructive, of the allegedly dangerous condition that allegedly caused the plaintiffs accident. In support of their contention that they should be granted summary judgement as against third-party defendant DHL, defendant/third-party plaintiff TRANSPORT argues that the contract between the parties requires third-party defendant DHL to indemnify defendant/third-party plaintiff TRANSPORT for all personal injury claims arising from the use of the trailers and staircase, and to pay for defendant/third-party plaintiff TRANSPORT'S
attorneys' fees. Defendant/third-party plaintiff TRANSPORT further contends that third-party defendant DHL has offered nothing that would prove that the lease agreement in question, including the indemnity pro vis on, was not in effect on the date of the plaintiffs accident. Based on the foregoing, defendant/third-party plaintiff TRANSPORT also argues that third-party defendant DHL is unable to prove their counterclaims seeking indemnity and/or contribution from, and judgement over and against defendant/third-party plaintiff TRANSPORT.
In opposition to the motion by third-party defendant DHL, defendant/third-party plaintiff TRANSPORT reiterates the argument made in their own motion for summary judgement, arguing that the lease agreement makes it clear that they are entitled to indemnification and attorney's fees from third-party defendant DHL. Defendant/third-party plaintiff TRANSPORT argues that §11 of the New York State's Workers' Compensation Law does not preclude their third-party action because this action falls within the exception to the Workers' Compensation Law that permits a claim for indemnification where it is based upon a provision in a written contract entered into before the accident. Not surprisingly, defendant/third-party plaintiff TRANSPORT also states in its opposition papers that it agrees with third-party defendant DHL's argument that the plaintiffs action as against defendant/third-party plaintiff TRANSPORT should be dismissed as a matter of law.
In opposition to defendant/third-party plaintiff TRANSPORT'S motion for summary judgement, third-party defendant DHL reiterates the arguments set forth in their motion for summary judgement. Specifically, third-party defendant DHL argues that defendant/third-party plaintiff TRANSPORT cannot satisfy any of the prerequisites set forth in §11 of the Workers' Compensation Law that would permit it to maintain its claims against third-party defendant
DHL, because the plaintiff has not sustained a "grave injury" as defined in the statute, and the contract between the parties does not require third-party defendant DHL to indemnify defendant/third-party plaintiff TRANSPORT for the loss in question. Third-party defendant DHL argues that a review of the plaintiffs bill of particulars as well as his medical records clearly demonstrates that the plaintiff has not sustained a "grave injury". Third-party defendant DHL further argues that a review of the lease agreement contract in question "does not reveal any direct or specific language whereby [third-party defendant] DHL unambiguously and expressly provides that [defendant]-third party plaintiff [TRANSPORT] is to be indemnified for injuries sustaind by employees in the scope of their employment". Interestingly, third-party defendant DHL's opposition papers are silent as to defendant/third-party plaintiff TRANSPORT'S request for dismissal of third-party defendant DHL's counterclaims.
The plaintiff opposes both motions, initially stating that he has no position on that portion of defendant/third-party plaintiff TRANSPORT'S motion which seeks contractual indemnification from third-party defendant DHL. Regarding those portions of the motions seeking summary judgement against the plaintiff, the plaintiff argues that questions of fact exist which require that the motions be denied. Specifically, the plaintiff points to conflicting testimony between the witness for defendant/third-party plaintiff TRANSPORT and the witness for third-party defendant DHL regarding notice of the defect in the subject stairs as well as conflicting testimony regarding the wood braces that were placed and used under the subject stairs. The plaintiff further argues that by the language in the lease agreement between defendant/third-party plaintiff TRANSPORT and third-party defendant DHL, defendant/third-party plaintiff TRANSPORT retained responsibility for the delivery, set-up, installation and
maintenance of the leased equipment, including the aluminum steps, and more importantly, defendant/third-party plaintiff TRANSPORT retained the right to make periodic inspections of the equipment.
In reply to both the plaintiffs and third-party defendant DHL's opposition papers, defendant/third-party plaintiff TRANSPORT reiterates its' argument that the plaintiffs complaint should be dismissed as a matter of law contending that they had no notice of and did not create the condition complained of, and that pursuant to the lease agreement, they were not responsible for maintaining the stairs in a safe condition. Defendant/third-party plaintiff TRANSPORT argues that it did not own the property upon which the subject accident occurred, and as such, it is not an "out of possession" landlord as suggested by the plaintiff, and they cannot be held liable for non-specific building code violations that were never previously pled. Finally, defendant/third-party plaintiff TRANSPORT repeats its' contention that it is entitled to summary judgement on its claims for indemnification and attorneys' fees from third-party defendant DHL as a matter of law because the indemnification provision in the lease agreement "fits squarely into [the] exception to the Workers' Compensation ban on litigation against an employer".
In reply to the opposition papers submitted by the plaintiff and defendant/third-party plaintiff TRANSPORT, third-party defendant DHL repeats its' arguments that the plaintiff cannot establish a prima facie case of negligence as against defendant/third-party plaintiff TRANSPORT, that there are no triable issues of fact with regard to third-party defendant DHL, and that the indemnity language contained in the lease agreement contract "does not specifically state that the third-party plaintiff is entitled to be indemnified for injuries to the...
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