Peranzo v. WFP Tower D Co.

• Decision Date: 11 January 2022
• Docket Number: 15041-15042,Index No. 154704/16,595094/17, 595128/17,Case Nos. 2020-04866, 2020-04865
• Citation: 201 A.D.3d 486,162 N.Y.S.3d 3
• Parties: Amedeo PERANZO, Plaintiff–Respondent, v. WFP TOWER D CO. L.P. et al., Defendants–Respondents, Titanium Scaffold Services, LLC, Defendant-Appellant. Titanium Scaffold Services, LLC, Third–Party Plaintiff–Appellant, v. Pier Head Associates, Ltd. et al., Third–Party Defendants–Respondents. [And a Second Third-Party Action.]
• Court: New York Supreme Court — Appellate Division

201 A.D.3d 486

162 N.Y.S.3d 3

Amedeo PERANZO, Plaintiff–Respondent,

v.WFP TOWER D CO. L.P. et al., Defendants–Respondents,Titanium Scaffold Services, LLC, Defendant-Appellant.

Titanium Scaffold Services, LLC, Third–Party Plaintiff–Appellant,

v.Pier Head Associates, Ltd. et al., Third–Party Defendants–Respondents.

[And a Second Third-Party Action.]

15041-15042

Index No. 154704/16

595094/17, 595128/17

Case Nos. 2020-04866, 2020-04865

Supreme Court, Appellate Division, First Department, New York.

ENTERED January 11, 2022

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellant.

Barry McTiernan & Moore LLC, New York (Patrick Kenny of counsel), for WFP Tower D Co. L.P., Brookfield Financial Properties L.P. and Structure Tone, Inc., respondents.

Furman, Kornfeld & Brennan LLP, New York (Andrew S. Kowlowitz of counsel), for Pier Head Associates, Ltd., respondent.

Gische, J.P., Kern, Friedman, Oing, Singh, JJ.

Order, Supreme Court, New York County (Lucy Billings, J.), entered on or about May 18, 2020, which, to the extent appealed from as limited by the briefs, granted third-party defendant Pier Head Associates, Ltd.’s (Pier Head) motion for summary judgment dismissing defendant/third-party plaintiff Titanium Scaffold Services, LLC's (Titanium) third-party claim for contractual indemnification as against it, and denied Titanium's cross motion for summary judgment on its contractual indemnification claim against Pier Head, unanimously affirmed, without costs. Order, same court and Justice, entered on or about August 19, 2020, which, to the extent appealed from as limited by the briefs, denied Titanium's motion for summary judgment dismissing plaintiff's negligence and Labor Law § 200 claims against it, denied Titanium's motion for summary judgment dismissing defendants WFP Tower D. Co. L.P. (WFP Tower), Brookfield Financial Properties L.P. (Brookfield), and Structure Tone, Inc's (Structure Tone) cross claims for contractual indemnification as against it, denied Titanium's motion for summary judgment on its third-party claim for contractual indemnification against third-party defendant Commodore Construction Corp. (Commodore), granted unconditionally WFP Tower and Brookfield's motion for summary judgment on their contractual indemnification claims against Titanium, granted conditionally Structure Tone's motion for summary judgment on its contractual indemnification claim against Titanium, and granted Commodore's cross motion for summary judgment dismissing Titanium's contractual indemnification claim as against it, unanimously reversed, on the law, without costs, to grant Titanium's motion for summary judgment dismissing plaintiff's negligence and Labor Law § 200 claims as against it, and, upon a search of the record, grant summary judgment to Structure Tone dismissing plaintiff's negligence and Labor Law § 200 claims as against it, and grant Titanium's motion for summary judgment dismissing WFP Tower's, Brookfield's and Structure Tone's cross claims for contractual indemnification as against it, deny WFP Tower's, Brookfield's and Structure Tone's motion for summary judgment on their contractual indemnification claims against Titanium.

The motion court properly dismissed Titanium's contractual indemnification claims against Pier Head as there was no evidence that Pier Head was negligent in the performance of its contract with Titanium so as to trigger the indemnification clause of the parties’ subcontract (see Rubino v. 330 Madison Co., LLC , 150 A.D.3d 603, 604, 56 N.Y.S.3d 55 [1st Dept. 2017] ; Hamill v. Mutual of Am. Inv. Corp. , 79 A.D.3d 478, 479–480, 913 N.Y.S.2d 62 [1st Dept. 2010] ). The unambiguous language of the parties’ agreement expressly limits Pier Head's indemnity to situations where Pier Head's negligence was responsible for plaintiff's injuries, and pursuant to its terms, superseded the later indemnification agreement signed by the parties. Since there was no ambiguity in the subcontract, Titanium's argument that the court ignored testimony as to the parties’ intentions is unavailing (see Universal Am. Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 25 N.Y.3d 675, 680, 16 N.Y.S.3d 21, 37 N.E.3d 78 [2015] ; Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire & Mar. Ins. Co., 143 A.D.3d 146, 156, 38 N.Y.S.3d 1 [1st Dept. 2016], affd 31 N.Y.3d 131, 74 N.Y.S.3d 162, 97 N.E.3d 711 [2018] ).

Based on the testimonial evidence and photographs in the record, Titanium, which did not erect the scaffolding, established prima facie that the horizontal cross-bracing bar affixed to the scaffold, about 14 inches above the ground, which plaintiff tripped over while attempting to step over it, was open and obvious, and not inherently dangerous (see Panetta v. Paramount Communications, Inc., 255 A.D.2d 568, 568, 681 N.Y.S.2d 85 [2d Dept. 1998], lv denied 93 N.Y.2d 806, 689 N.Y.S.2d 708, 711 N.E.2d 984 [1999] ; Matthews v. Vlad Restoration Ltd., 74 A.D.3d 692, 692, 904 N.Y.S.2d 391 [1st Dept. 2010] ; Connor v. Taylor Rental Ctr., Inc., 278 A.D.2d 270, 718 N.Y.S.2d 605 [1st Dept. 2000] ; Wendell v....