Regno v. City of N.Y.

• Decision Date: 31 August 2015
• Docket Number: Index No. 109524/2009
• Citation: 2015 NY Slip Op 32951 (U)
• Court: New York Supreme Court
• Parties: JAMES G. REGNO and BRENDA REGNO, Plaintiffs v. CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF SANITATION, TULLY CONSTRUCTION CO., INC., TULLY INDUSTRIES, INC., DART MECHANICAL CORP., BOVIS EAST, INC., BOVIS LEND LEASE, INC., BOVIS CONSTRUCTION CORP., J.H. ELECTRIC OF NEW YORK, INC., ALMAR PLUMBING AND HEATING CORPORATION, and COASTAL SHEET METAL CORP., Defendants ALMAR PLUMBING & HEATING CORP. s/h/a ALMAR PLUMBING AND HEATING CORPORATION, Third Party Plaintiff v. BRUNO GRGAS, INC., Third Party Defendant DART MECHANICAL CORP., Second Third Party Plaintiff v. BRUNO GRGAS, INC., Second Third Party Defendant

2015 NY Slip Op 32951(U)

JAMES G. REGNO and BRENDA REGNO, Plaintiffs
v.
CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF SANITATION,
TULLY CONSTRUCTION CO., INC., TULLY INDUSTRIES, INC.,
DART MECHANICAL CORP., BOVIS EAST, INC., BOVIS LEND LEASE, INC.,
BOVIS CONSTRUCTION CORP., J.H. ELECTRIC OF NEW YORK, INC.,
ALMAR PLUMBING AND HEATING CORPORATION,
and COASTAL SHEET METAL CORP., Defendants

ALMAR PLUMBING & HEATING CORP.
s/h/a ALMAR PLUMBING AND HEATING CORPORATION, Third Party Plaintiff
v.
BRUNO GRGAS, INC., Third Party Defendant

DART MECHANICAL CORP., Second Third Party Plaintiff
v.
BRUNO GRGAS, INC., Second Third Party Defendant

Index No. 109524/2009

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

FILED: September 16, 2020
August 31, 2015

DECISION AND ORDER

Page 2

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

Plaintiffs sue to recover damages for personal injuries and lost services sustained August 15, 2008, when plaintiff James Regno, an employee of second third party defendant Bruno Grgas, Inc., an insulation subcontractor, was injured while working at premises owned by defendant City of New York and occupied by defendant New York City Department of Sanitation (DOS). He was working on the construction of a new sanitation garage on 12th Avenue between West 55th and West 58th Streets in New York County, where defendant Bovis Lend Lease, Inc., served as the construction manager and defendants Tully Construction Co., Inc., Dart Mechanical Corp., J.H. Electric of New York, Inc., and Almar Plumbing and Heating Corporation were prime contractors. While insulating a pipe, he stepped on a duct that another subcontractor, defendant Coastal Sheet Metal Corp., had installed. The duct collapsed, causing him to fall.

In an order dated September 30, 2010, the court (Jaffe, J.) dismissed Almar Plumbing and Heating's third party action against Bruno Grgas. Dart Mechanical commenced a second third party action against Bruno Grgas seeking contractual indemnification, including defense costs.

Bruno Grgas moves for summary judgment dismissing the second third party complaint and all cross-claims against Bruno Grgas. C.P.L.R. § 3212(b). Dart Mechanical cross-moves for summary judgment on its contractual indemnification claim against Bruno

Page 3

Grgas, C.P.L.R. § 3212(b) and (e), and separately moves for summary judgment dismissing all claims and cross-claims against Dart Mechanical. C.P.L.R. § 3212(b). For the reasons explained below, the court grants Bruno Grgas's motion in part and conditionally grants Dart Mechanical's cross-motion, but denies its separate motion.

II. SUMMARY JUDGMENT STANDARDS

Bruno Grgas and Dart Mechanical, to obtain summary judgment, must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005); Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003). If Bruno Grgas and Dart Mechanical satisfy this standard, the burden shifts to the opposing parties to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). In evaluating the evidence for purposes of the motions and cross-motion, the court construes the evidence in the light most favorable to the opponents. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 37 (2004). If Bruno Grgas and Dart Mechanical fail to meet their initial burden, the court must deny

Page 4

summary judgment despite any insufficiency in the opposition. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d at 384.

A "motion for summary judgment shall be supported . . . by a copy of the pleadings." C.P.L.R. § 3212(b) (emphasis added). See LaRusso v. Katz, 30 A.D.3d 240, 243 (1st Dep't 2006). "The pleadings" means "all of the pleadings," Washington Realty Owners, LLC v. 260 Wash. St., LLC, 105 A.D.3d 675 (1st Dep't 2013); Weinstein v. Gindi, 92 A.D.3d 526, 527 (1st Dep't 2012); Matsyuk v. Konkalipos, 35 A.D.3d 675, 676 (2d Dep't 2006); Welton v. Drobnicki, 298 A.D.2d 757 (3d Dep't 2002), or "a complete set of the pleadings." Washington Realty Owners, LLC v. 260 Wash. St., LLC, 105 A.D.3d 675; Wider v. Heller, 24 A.D.3d 433, 434 (2d Dep't 2005).

III. PROCEDURAL ISSUES

A. Failure to Support Summary Judgment With the Pleadings

Bruno Grgas fails to present copies of all the pleadings. It supports its motion with Dart Mechanical's second third party summons and complaint, its answer to the second third party complaint, and only the answer by Bovis Lend Lease and Bovis Construction Corp. to the main complaint.

Where a party moving for summary judgment fails to include all the pleadings in support of the motion, the court may be constrained to deny the motion for that reason alone. Washington Realty Owners, LLC v. 260 Wash. St., LLC, 105 A.D.3d 675; Weinstein v. Gindi, 92 A.D.3d at 527; State of New York v. Metz,

Page 5

241 A.D.2d 192, 198 (1st Dep't 1998); Matsyuk v. Konkalipos, 35 A.D.3d at 676. Bruno Grgas, however, seeks dismissal of the second third party complaint and all cross-claims against Bruno Grgas, which only the two Bovis defendants, Bovis Lend Lease and Bovis Construction Corp., had interposed against Bruno Grgas when it moved for summary judgment. Therefore the record is sufficiently complete to determine Bruno Grgas's motion, despite its failure to present all the other pleadings in the action: an omission that inflicts no prejudice on the affected parties, Dart Mechanical and the Bovis defendants. C.P.L.R. § 2002; Guaman v. 1963 Ryer Realty Corp., 127 A.D.3d 454, 456 (1st Dep't 2014); Reyes v. Sanchez-Pena, 117 A.D.3d 621, 622 (1st Dep't 2014). See Washington Realty Owners, LLC v. 260 Wash. St., LLC, 105 A.D.3d 675.

B. Prematurity

Plaintiffs, the City defendants, and Almar Plumbing and Heating insist that the court deny the motions and cross-motion for summary judgment because disclosure is necessary to oppose them. C.P.L.R. § 3212(f). These parties point out that neither Bruno Grgas nor Dart Mechanical presents a witness who explains Dart Mechanical's payment for James Regno's work on Almar Plumbing and Heating pipes, and Bruno Grgas presents no witness who explains records indicating that James Regno was insulating Dart Mechanical pipes when he was injured. Almar Plumbing and Heating seeks Bruno Grgas's disclosure of documents Bruno Grgas relied on, but also failed to present, to support its claim that

Page 6

James Regno was working on Almar Plumbing and Heating pipes.

While acknowledging factual issues whether the pipes James Regno was insulating belonged to Almar Plumbing and Heating or Dart Mechanical, neither plaintiffs, nor the City defendants, nor Almar Plumbing and Heating points to anything they might elicit from Bruno Grgas or Dart Mechanical that would uncover any factual issues not already raised. C.P.L.R. § 3212(f); Nascimento v. Bridgehampton Constr. Corp., 86 A.D.3d 189, 192 (1st Dep't 2011); Harlem Real Estate LLC v. New York City Economic Dev. Corp., 82 A.D.3d 562, 563 (1st Dep't 2011); Kent v. 534 East 11th Street, 80 A.D.3d 106, 114 (1st Dep't 2010); Global Mins. & Metal Corp. v. Holme, 35 A.D.3d 93, 103 (1st Dep't 2006). See Santana v. Danco Inc., 115 A.D.3d 560 (1st Dep't 2014); Griffin v. Pennoyer, 49 A.D.3d 341 (1st Dep't 2008). An explanation of the conflicting evidence regarding James Regno's work when he was injured that further disclosure might reveal simply would reinforce the factual issues and thus provides no reason to delay a determination of the motions and cross-motion. C.P.L.R. § 3212(f); Santana v. Danco Inc., 115 A.D.3d 560; Emery v. Parker, 107 A.D.3d 635, 636 (1st Dep't 2013); Griffin v. Pennoyer, 49 A.D.3d 341; Artigas v. Renewal Arts Realty Corp., 22 A.D.3d 327, 328 (1st Dep't 2005).

IV. BRUNO GRGAS'S MOTION

A. Summary Judgment Dismissing the Second Third Party Claim for Contractual Indemnification

Bruno Grgas, a subcontractor for the heating, ventilation, and air conditioning (HVAC) prime contractor Dart Mechanical,

Page 7

contends that its claim for contractual indemnification under their subcontract fails because Bruno Grgas was working on a purchase order from Almar Plumbing and Heating and not on Bruno Grgas's subcontract with Dart Mechanical when James Regno was injured. At oral argument November 14, 2013, the parties stipulated to the admissibility of all exhibits, which include the parties' contracts and subcontracts, for purposes of determining the motions and cross-motion for summary judgment.

Dart Mechanical bases its claim against Bruno Grgas on Article 24 of their subcontract dated March 16, 2005, where Bruno Grgas agreed to:

defend, indemnify, and hold harmless DART, OWNER, OWNER'S REPRESENTATIVE and their respective agents and employees . . . from and against any claim . . . attributable to personal injury . . . caused by, arising out of, resulting from or occurring in connection with the performance of the WORK by SUBCONTRACTOR,

referring to Bruno Grgas. Aff. of Christopher Otton Ex. J, at 10. Rider A to the subcontract describes the "WORK" as providing and installing insulation on various types of pipes and ducts, id. at 4, and subjects the "WORK" to approval by Dart Mechanical. Id. at 3.

While Bruno Grgas may not rely on James Regno's speculation that, because the pipe he was working on was copper, it belonged to Almar Plumbing and Heating, an assumption drawn from sources beyond his personal knowledge, Bruno Grgas still meets its initial burden to show that his injury did not arise from work under its subcontract with Dart Mechanical. Dart...