Thadani v. Between the Bread 40th Inc.
| Decision Date | 31 July 2019 |
| Docket Number | Index No. 154329/2016 |
| Citation | 2019 NY Slip Op 32356 (U) |
| Parties | RUMONA THADANI, Plaintiff v. BETWEEN THE BREAD 40TH INC., DOM BEN REALTY CORPORATION, and P. VERARDI CONSTRUCTION CORP., Defendants P. VERARDI CONSTRUCTION CORP., Third Party Plaintiff v. AMERICAN CONSTRUCTION and GABRIEL UZIEL, Third Party Defendants BETWEEN THE BREAD 40TH INC. and DOM BEN REALTY CORPORATION, Second Third Party Plaintiffs v. AMERICAN CONSTRUCTION and GABRIEL UZIEL, Second Third Party Defendants |
| Court | New York Supreme Court |
DECISION AND ORDER
I. BACKGROUND
Plaintiff sues to recover damages for personal injuries sustained September 19, 2015, when she was struck by construction material in front of 20A East 40th Street, New York County, owned by defendant Dom Ben Realty Corporation, where defendant Between the Bread 40th Inc. was a tenant. Either defendant P. Verardi Construction Corp. or third party defendant Uziel, who did business as American Construction, was renovating the premises for the tenant. P. Verardi Construction commenced a first third party action and the owner and tenant (owner defendants) commenced a second third party action against American Construction and Uziel, claiming contribution, implied and contractual indemnification, and breach of a contract to procure insurance.
The owner defendants move for summary judgment dismissing the complaint and P. Verardi Construction's cross-claims, C.P.L.R. § 3212(b), and awarding the owner defendants indemnification based on their cross-claims against P. VerardiConstruction. Third party defendants cross-move for summary judgment dismissing the third party actions, id., maintaining that Uziel and American Construction performed no work at the premises. For the reasons explained below, the court grants the owner defendants' motion in part and third party defendants' cross-motion in part and denies the remainder of the motion and cross-motion.
II. THE EVIDENCE
Plaintiff testified at her deposition that, as she walked on the sidewalk abutting the owner defendants' premises, workers inside the premises threw wood to the sidewalk outside that struck her leg. Plaintiff testified that "Gabby," a man whom she believed was involved in the construction on the premises, assisted her after her injury. Aff. of Gary Marshall Ex. N, at 33. Uziel, who happened to be at the work site when plaintiff was injured, attests in his affidavit, however, that plaintiff informed him she was injured when "her shoe got caught in the metal subway grate on the sidewalk." Aff. of Gabriel Uziel ¶ 7. This alleged admission contradicts plaintiff's testimony, raising a factual issue whether her injury is attributable to renovation work on the owner defendants' premises, carried out by defendantsor third party defendants, or to another cause. Santos v. Condo 124 LLC, 161 A.D.3d 650, 654-55 (1st Dep't 2018); Medrano v. Port Auth. of N.Y. & N.J., 154 A.D.3d 521, 521-22 (1st Dep't 2017); Albino v. 221-223 W. 82 Owners Corp., 142 A.D.3d 799, 800-801 (1st Dep't 2016); Barba v. Stewart, 137 A.D.3d 704, 705 (1st Dep't 2016).
Uziel also attests that, since September 19, 2015, was a Saturday, no renovation work was being performed at the site, which also contradicts plaintiff's account. Finally, Uziel attests that plaintiff was alone when he assisted her, contradicting her testimony that her client Sanjeev Thakrar accompanied her when she was injured. Thakrar's affidavit, on the other hand, largely confirms plaintiff's account.
At oral argument April 2, 2019, the parties stipulated that the court consider Between the Bread's agreement for renovation of its premises, executed July 22, 2015, authentic and admissible for the purposes of the motion and cross-motion for summary judgment. The parties further stipulated that whichever party contracted with Between the Bread to perform renovation of the 20A East 40th Street premises also was responsible for cleaning up the renovation debris, the negligent performance of which mayhave entailed workers inside the premises throwing wood to the sidewalk outside.
Section 9.15.1 of the renovation agreement between Between the Bread (referred to as the "Owner") and the Contractor provides:
To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, Architect, Architect's consultants and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section 9.15.1.
Aff. of Anthony Caronna Ex. E, at 11. Thus the agreement requires indemnification only to the extent that plaintiff's claimed injury resulted from the negligence of the contractor or the contractor's employee or agent. Section 17.1 of the renovation agreement also requires the contractor to procure insurance:
The Contractor shall purchase from, and maintain in a company or companies lawfully authorized to do business inthe jurisdiction in which the Project is located, insurance for protection from claims under workers' compensation acts and other employee benefit acts which are applicable, claims for damages because of bodily injury, including death, and claims for damages, other than to the Work itself, to property which may arise out of or result from the Contractor's operations and completed operations under the Contract, whether such operations be by the Contractor or by a Subcontractor or anyone directly or indirectly employed by any of them.
III. THIRD PARTY DEFENDANTS' CROSS-MOTION
The undisputed evidence establishes that American Construction was a sole proprietorship owned by Uziel, which is not a suable entity. Therefore the court grants his cross-motion for summary judgment dismissing the third party actions against American Construction.
Uziel contends that he is not liable for plaintiff's injuries either, because he was not a party to the renovation agreement. Jonathan Eisen, Between the Bread's chief strategy officer, signed the agreement on its behalf. Uziel maintains that he signed the agreement on behalf of P. Verardi Construction, whose name appears on the agreement. Paul Verardi, P. Verardi Construction's president and owner, testified at his deposition that P. Verardi Construction never gave Uziel authority to sign contracts for P. Verardi Construction anddenied that Uziel was ever its employee. The contradictory accounts by Uziel and Verardi raise factual issues involving credibility determinations regarding Uziel's actual authority to execute the agreement on P. Verardi Construction's behalf. Citibank, N.A. v. Uri Schwartz & Sons Diamonds Ltd., 97 A.D.3d 444, 446 (1st Dep't 2012); 1100 Inc. v. 4441 Broadway Realty Corp., 5 A.D.3d 284, 285 (1st Dep't 2004).
No evidence, however, indicates Uziel's apparent authority, which arises from the conduct of the principal only and not the agent. Indosuez Intl. Fin. v. National Reserve Bank, 98 N.Y.2d 238, 245 (2002); Standard Funding Corp. v. Lewitt, 89 N.Y.2d 546, 551 (1997); Hallock v. State of New York, 64 N.Y.2d 224, 231 (1984); DLJ Mtge. Capital, Inc. v. Kontogiannis, 102 A.D.3d 489, 489 (1st Dep't 2013), aff'd, 22 N.Y.3d 960 (2013). Neither Ricky Eisen, the president of Between the Bread, nor Jonathan Eisen communicated with Verardi or P. Verardi Construction. Verardi in turn denied any knowledge of Between the Bread, Dom Ben Realty, or the Eisens. Although Verardi testified that P. Verardi Construction allowed Uziel to use its insurance and its name for Between the Bread's architect to obtain the permit for the renovation and to help Uziel secure the job, no evidence establishes that the use of P. Verardi Construction's insuranceor name in connection with the permit was communicated to Ricky or Jonathan Eisen. Contrary to the owner defendants' characterization of Verardi's testimony, no evidence establishes that P. Verardi Construction allowed Uziel to use its contractor's license or obtained the permit itself. Nor does the evidence disclose any other words or conduct by P. Verardi Construction indicating to Between the Bread that Uziel possessed authority to act on P. Verardi Construction's behalf. Site Five Hous. Dev. Fund Corp. v. Estate of Bullock, 112 A.D.3d 479, 480 (1st Dep't 2013); 1230 Park Assoc., LLC v. Northern Source, LLC, 48 A.D.3d 355, 356 (1st Dep't 2008); 56 E. 87th Units Corp. v. Kingsland Group, Inc., 30 A.D.3d 653, 653 (1st Dep't 2011); Wood v. Carter Co., 273 A.D.2d 7, 7 (1st Dep't 2000). See Evans v. Norecaj, 172 A.D.3d 576, 578 (1st Dep't 2019).
While from the owner defendants' perspective nothing cast doubt on Uziel's authority to act for P. Verardi Construction, National Black Theatre Workshop Inc. v. Nubian Props. LLC, 89 A.D.3d 518, 520 (1st Dep't 2011), none of the representations of his authority emanated from P. Verardi Construction. See Cologne Life Reins. Co. v. Zurich Reins. (N. Am.), 286 A.D.2d 118, 125 (1st Dep't 2001). The law did not permit Uziel to vest himself with apparent authority to act as P. Verardi Construction'sagent. Hallock v. State of New York, 64 N.Y.2d at 231; Children's Day Treatment Ctr. &...
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