Velazquez-Guadalupe v. Ideal Builders & Constr. Servs., Inc.
| Citation | 188 N.Y.S.3d 537 |
| Docket Number | 2020–00673,Index No. 709223/17 |
| Decision Date | 19 April 2023 |
| Parties | Salvador VELAZQUEZ–GUADALUPE, plaintiff-respondent, et al., plaintiff, v. IDEAL BUILDERS AND CONSTRUCTION SERVICES, INC., et al., defendants-respondents, J.S.K. Construction Corp., et al., appellants (and a third-party action). |
| Court | New York Supreme Court — Appellate Division |
Nicoletti Spinner Ryan Gulino Pinter LLP, New York, NY (Matthew G. Corcoran of counsel), for appellant J.S.K. Construction Corp.
Westermann Sheehy Samaan & Gillespie, LLP, East Meadow, NY (Joanne Emily Bell of counsel), for appellant CDW Carpentry, Inc.
Ronemus & Vilensky LLP (Lisa M. Comeau, Garden City, NY, of counsel), for plaintiff-respondent.
O'Connor Redd Orlando LLP, Port Chester, NY (Joseph A. Orlando of counsel), for defendant-respondent Ideal Builders and Construction Services, Inc.
Robert A. Peirce, White Plains, NY (Richard A. Salvato of counsel), for defendants—respondents John Argyros and Dana M. Argyros.
Ahmuty, Demers & McManus, Albertson, NY (Nicholas P. Calabria of counsel), for defendant-respondent Cindy Koumantaros.
Rosenberg, Minc, Falkoff & Wolff, LLP, New York, NY (Steven C. Falkoff of counsel), for plaintiff Baljinder Singh.
Pillinger Miller Tarallo, Garden City, NY (Neil L. Sambursky of counsel), for third-party defendants Hephaistos Building Supplies, Inc., and Hephaistos Developing, LLC.
FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, LILLIAN WAN, JJ.
Workers’ Compensation Law § 11(1) precludes recovery by "any third person" against "[a]n employer" for contribution or indemnity "for injuries sustained by an employee acting within the scope of his or her employment" unless the employee "has sustained a ‘grave injury’ " or there is a "written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant." Despite this clear directive, the Supreme Court, relying on this Court's decision in Baten v. Northfork Bancorporation, Inc. , 85 A.D.3d 697, 925 N.Y.S.2d 548, permitted cross-claims sounding in contribution and indemnity to survive against an entity on the ground that triable issues of fact existed with respect to whether that entity was an employer, regardless of a Workers’ Compensation Board determination on this issue. Here, we clarify that, notwithstanding our prior decision in Baten , no claim for indemnity or contribution may be maintained against an entity determined to be an employer by the Workers’ Compensation Board except in the limited circumstances specified in Workers’ Compensation Law § 11.
On June 20, 2017, a building under construction at 31–25 28th Road in Queens collapsed, allegedly under the weight of construction materials stored on the roof. The plaintiff Salvador Velazquez–Guadalupe commenced an action to recover damages for personal injuries he allegedly sustained in the building collapse. Among the defendants named in the amended complaint were Cindy Koumantaros, the owner of the property; Ideal Builders and Construction Services, Inc. (hereinafter Ideal), the general contractor; and CDW Carpentry, Inc. (hereinafter CDW), a subcontractor. Also named as defendants were John Argyros and Dana M. Argyros (hereinafter together the Argyros defendants), the owners of a neighboring property, which allegedly was part of the same construction site, and J.S.K. Construction Corp. (hereinafter JSK), which constructed a sidewalk shed along 28th Road as part of the work. The plaintiff Baljinder Singh commenced a separate action to recover damages for personal injuries he allegedly sustained in the building collapse against Ideal, the Argyros defendants, and Koumantaros. CDW and JSK were not named as defendants in that action. Both plaintiffs asserted causes of action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). Neither plaintiff alleged that he suffered a grave injury as defined under the Workers’ Compensation Law. The Supreme Court consolidated the actions for all purposes by order dated March 16, 2018.
Around the time of consolidation, in the Velazquez–Guadalupe action, Ideal commenced a third-party action against subcontractors J. United Construction Corp. (hereinafter J. United), and Hephaistos Building Supplies, Inc., and Hephaistos Developing, LLC (hereinafter together the Hephaistos entities), alleging that one or all of them were responsible for placing the materials on the roof that caused it to collapse. In the Velazquez–Guadalupe action, CDW, JSK, Ideal, Koumantaros, and the Argyros defendants all asserted cross-claims against one another sounding in contribution and common-law indemnification, among other things. Koumantaros additionally asserted cross-claims for contractual indemnification and alleging breach of contract for failure to procure insurance.
The plaintiffs also pursued separate claims before the Workers’ Compensation Board (hereinafter WCB). After a hearing on Velazquez–Guadalupe's claim, the WCB awarded him compensation for the injuries he sustained and directed that payment be made by CDW or its insurance carrier. The WCB expressly found an "employer/employee relationship" existed between Velazquez–Guadalupe and CDW on the date of the accident, contradicting Velazquez–Guadalupe's allegations in his complaint, amended complaint, and several of his bills of particulars that he was actually J. United's employee on the date of the accident. The WCB also awarded Singh compensation for his injuries, although it further determined that he was employed by J. United, which was uninsured on the date of the accident.
At issue on these appeals is the Supreme Court's resolution of JSK's and CDW's separate motions, inter alia, for summary judgment, and the Argyros defendants’ cross-motion, among other things, for leave to amend their answer in the Velazquez–Guadalupe action. Specifically, JSK moved, inter alia, for summary judgment dismissing the amended complaint and all cross-claims insofar as asserted against it. JSK submitted, among other things, a work proposal signed by Koumantaros and John Argyros, a work permit and related correspondence from the City of New York, an affidavit from its principal, and other written correspondence showing that its responsibilities at the work site were limited to constructing a sidewalk shed, and that it only obtained permission to do so on June 20, 2017, the day of the building collapse. The plaintiffs, Koumantaros, Ideal, and the Hephaistos entities opposed the motion, inter alia, on the ground that they had not had the opportunity to depose JSK's principal and conduct other discovery on the question of whether JSK was storing materials at the work site in preparation for its work.
CDW moved for summary judgment dismissing the amended complaint and all cross-claims insofar as asserted against it. CDW argued that because Velazquez–Guadalupe sought and obtained benefits from it as his employer pursuant to a determination of the WCB, the causes of action asserted by Velazquez–Guadalupe, and all cross-claims sounding in contribution and indemnification asserted by the other defendants, were barred insofar as asserted against it by statute in the absence of any allegation of grave injury or a written contract in which it agreed to contribute to or indemnify another party (see Workers’ Compensation Law § 11 ). CDW further asserted that the WCB's determination that it was in fact Velazquez–Guadalupe's employer could not be attacked in a plenary action, even by parties who did not participate in the WCB proceeding. Koumantaros, Ideal, the Argyros defendants, and the Hephaistos entities all opposed the motion on the grounds that the doctrine of collateral estoppel did not preclude them from challenging the WCB's finding of an employer-employee relationship between CDW and Velazquez–Guadalupe, and that triable issues of fact existed on that question, not least because Velazquez–Guadalupe himself repeatedly averred and testified that J. United was his employer, not CDW. Velazquez–Guadalupe also opposed the motion, and while he conceded that the WCB's determination had preclusive effect as against him, he insisted that the motion was premature with respect to the cross-claims insofar as asserted against CDW.
CDW also argued that it was entitled to summary judgment dismissing Koumantaros's cross-claim alleging breach of contract for failure to procure insurance because the terms of their agreement were set forth in a writing that did not impose any duty upon it to procure insurance. In opposition to CDW's motion, Koumantaros submitted an affidavit in which she averred that CDW's owner orally promised to provide her with insurance and even presented her with a certificate of insurance naming her as an additional insured on CDW's policy, and that she discovered later that CDW had hired uninsured subcontractor J. United to perform masonry work.
The Argyros defendants cross-moved, inter alia, for leave to amend their answer in the Velazquez–Guadalupe action to assert a cross-claim against CDW alleging breach of contract for failure to procure insurance. In support, they submitted an affidavit from John Argyros, who averred that CDW's owner also made an oral promise to him that CDW would provide liability insurance for him and Dana M. Argyros, and that CDW's owner also produced a certificate of insurance for them. The Argyros defendants proposed to allege that CDW breached this agreement by hiring the uninsured J. United as a subcontractor. In opposition, CDW argued that any purported oral agreement to procure insurance was invalid under the statute of frauds (see General Obligations Law § 5–701[a][2] ).
In an order entered December 31, 2019, the Supreme Court, inter alia, denied, as premature, that branch of JSK's motion which was for summary judgment dismissing the amended...
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