Watson v. Intercounty Paving Assoc., LLC

Watson v Intercounty Paving Assoc., LLC 2024 NY Slip Op 33780(U) October 23, 2024 Supreme Court, New York County Docket Number: Index No. 157377/2014 Judge: David B. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DAVID B. COHEN PART 58 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 157377/2014 JANE MARTIN WATSON, ROBERT I. WATSON, MOTION DATE 12/12/2023 Plaintiffs, MOTION SEQ. NO. 005 006 - V -

INTERCOUNTY PAVING ASSOCIATES, LLC, ROYAL GUARD FENCE CO., INC., PONDEROSA FENCE DECISION + ORDER ON ENTERPRISES INC., LANDTEK GROUP/PERIMETER BARRIER SYSTEMS JOINT VENTURE, L.P., MOTION

Defendants. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 005) 128, 129, 130, 131, 132,133,134,135,136,137,138,139,140,141,142,143,144,145,146,147,148,149,150,151,152, 153,154,155,156,157,158,159,160,161,162,163,164,165,166,¹⁶⁷,168,169,170,171,172,173, 192, 193, 194, 195, 197, 198,199,208 were read on this motion to/for JUDGMENT-SUMMARY

The following e-filed documents, listed by NYSCEF document number (Motion 006) 174, 175, 176, 177, 178,179,180,181,182,183,184,185,186,187,188,189,190,191,196,200,201,202,203,204,205, 206,207,209,210 were read on this motion to/for JUDGMENT-SUMMARY

This action involves claims of negligence, negligent supervision, and loss of consortium

for personal injuries allegedly caused by a tripping hazard in a parking lot at Jones Beach State

Park (Park) in Wantagh, Nassau County, New York.

In motion sequence number five, plaintiff moves for partial summary judgment on

liability against defendants Intercounty Paving Associates, LLC (IPA) and Royal Guard Fence

Co., Inc. (RGF). IP A opposes and cross-moves for summary judgment on its cause of action

against RGF for contractual indemnification. RGF opposes both motions.

In motion sequence number 006, RGF moves for summary dismissal of the complaint, all

cross-claims, and IP A's third-party complaint. Plaintiff and IP A oppose.

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At his deposition, RGF's former president admitted that he did not know how the

guardrail posts were installed or why the bolts on which Watson allegedly tripped had been

placed where they were, and that he could not say, one way or the other, whether RGF had

placed the bolts in the pavement. He further admitted that RGF's duties under the Subcontract

included installing 52 bike racks near the bicycle path, and that RGF had secured these racks by

first drilling holes in the cement, inserting over 200 bolts in the holes to anchor the racks, and

attaching each rack to two or four of such protruding bolts (NYSCEF 157).

In reply to RGF, plaintiffs observe that IP A's witness testified that the bolts in question

were installed by RGF workers as part of the process of installing the wooden posts and rails on

the existing paved surfaces of Parking Lot 5 for the bicycle path project (NYSCEF Doc No.

153), and that his testimony has not been controverted by any evidence offered in opposition.

Plaintiffs also take issue with RGF' s contention that removal of anchor bolts was

expressly excluded from the Subcontract, relying on the testimony of IP A's witness, who

explained that the exclusion referred to bolts anchoring posts into large concrete blocks buried

underground and which could only be removed by an excavator, and therefore their exclusion

from the Subcontract was not related to the anchor bolts in question. Plaintiffs further note that

RGF' s witness testified that the exclusion applied only to removal of concrete or anchor bolts

that existed on site before RGF began its work.

In reply to IP A, Plaintiffs argued for the first time that a contractor like IP A may be held

liable for the negligent conduct of its independent contractor under certain exceptions to the

general rule against vicarious liability examined in Kleeman v Rheingold (81 NY2d 270, 27 4

[1993] [citations omitted]).

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B. Analysis

To establish a prima facie claim for negligence under New York law, "a plaintiff must

demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury

proximately resulting therefrom" (Solomon v City of New York, 66 NY2d 1026, 1027 [1985];

accord JE. v Beth Israel Hosp., 295 AD2d 281,283 [1st Dept 2002]; Wayburn v Madison Land

Ltd. Partnership, 282 AD2d 301,302 [1st Dept 2001]). "Because a finding of negligence must be

based on the breach of a duty, a threshold question in torts cases is whether the alleged tortfeasor

owed a duty of care to the injured party" (Espinal v Melville Snow Contrs., 98 NY2d 136, 138

[2002]). Absent a duty of care to the person injured, a party cannot be held liable in negligence

(Palsgraf v Long Is. R.R. Co., 248 NY 339, 341-342 [1928]).

An independent contractor may be held liable in negligence to a plaintiff if any of the

three factors are applicable: (1) when the contracting party, in failing to exercise reasonable care

in the performance of its duties, launches a force or instrument of harm; (2) when the plaintiff

detrimentally relies on the continued performance of the contracting party's duties; and (3) when

the contracting party has entirely displaced another party's duty to maintain the premises safely

(Espinal v Melville Snow Contrs., Inc., 98 NY2d 136, 140 [2002]).

The factual allegations discussed above implicate RGF's work in the launching of a force

or instrument of harm that allegedly caused Watson's accident, and thus plaintiffs' motion for

partial summary judgment on liability is granted as against RGF (see e.g., Camelia v Shady Glen

Owners' Corp., 219 AD3d 453 [2d Dept 2023] [contractor failed to show that it did not create

dangerous condition, where evidence reflected that contractor resurfaced area of crosswalk

before accident and that resurfacing caused elevation differential between existing pavement and

new asphalt, and plaintiff tripped on raised portion]).

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However, absent evidence that IP A engaged in any affirmative conduct which created or

exacerbated the hazard, plaintiffs' motion against IPA is denied (see e.g. Brandner v Boricua

Coll. Dev. Corp., 202 AD3d 616 [1st Dept 2022] [defendant entitled to summary dismissal as it

was independent contractor and performed no work to sidewalk in area of plaintiffs fall]; Miller

v Infohighway Communications Corp., 115 AD3d 713 [2d Dept 2014] [as defendants

subcontracted work to another company and their involvement was limited to receiving updates

and inspecting other company's work once completed, they showed that they did not perform

work that allegedly caused accident, and thus could not be held liable for creating dangerous

condition or otherwise launching force or instrument of harm]; George v Marshalls of MA, Inc.,

61 AD3d 925 [2d Dept 2009] [as contractor subcontracted cleaning services to another company,

it did not launch a force or instrument of harm]; Cardozo v Mayflower Ctr., Inc., 16 AD3d 536

[2d Dept 2005] [contractor which subcontracted work to another entity did not owe plaintiff duty

of care]).

As the court cannot consider arguments first raised in reply (Windermere Props., LLC v

City ofNew York, AD3d , 2024 NY Slip Op 04842 [1st Dept 2024]), the Court does not

address plaintiffs' arguments premised on the vicarious liability rule discussed in Kleeman v

Rheingold.

IPA's Cross-Motion Against RGF for Contractual Indemnification

IP A, citing, inter alia, Mikelatos v Theojilaktidis ( 105 AD3d 822, 823 [2d Dept 2013 ]),

asserts that it is entitled to indemnification from RGF under the terms of the indemnification

provision to the Subcontract, as there has been no showing that it was negligent in its

performance under the Prime Contract. Even if IP A could be held liable in negligence for

plaintiffs' injuries, it argues that it would still be entitled to contractual indemnification for any

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damages attributable to RGF' s tortious conduct, citing, inter alia, Brooks v Judlau Contr., Inc.

(11 NY3d 204 [2008]). Finally, IPA asserts that, as it is entitled to indemnification, it is also

entitled to recovery of defense costs, including attorneys' fees, citing Holt v Welding Servs., Inc.

(264 AD2d 562 [1st Dept 1999]).

In opposition, RGF argues that IP A should be held liable for its negligence in failing to

conduct a careful inspection of the worksite upon completion of the project, which it contends

would have led to IP A's discovery of the hazardous condition before that area of the Park was

reopened to the public, and that responsibility for removing the bolts was excluded from the

scope ofRGF's work under the Subcontract. RGF also asserts that the IP A's witness's

testimony raises issues of fact relating to his credibility, which undermines IP A's claim for

contractual indemnification, and that IP A is not entitled to either defense costs or attorneys' fees.

IP A has met its prima facie burden of establishing its entitlement to summary judgment

on its cross-claim for contractual indemnification. The applicable contractual provision states

that RGF shall indemnify IP A "from and against any and all claims, damages, losses and

expenses, including but not limited to attorney's fees, arising out of or resulting from (1) its

performance of the Work or (2) any breach of this agreement" (NYSCEF 150), thereby

expressing "an unmistakable intent that [RGF] indemnify [IPA], regardless of whether either

party is at fault or is found liable" (Gregware v City of New York, 132 AD3d 51, 64 [1st Dept

2015] [citation omitted]).

Although broad, "the indemnity provision ... does not run afoul of General Obligations

Law§ 5-322.1 because it contemplates indemnification to the 'fullest extent of the law,' which

does not seek indemnification for [IP A's] own negligence" (Alvarado v SC 142 West 24 LLC,

209 AD3d 422,424 [1st Dept 2022], citing Brooks, 11 NY3d at 207 [statute permits "a partially

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negligent general contractor to seek contractual indemnification from its subcontractor so long as

the indemnification provision does not purport to indemnify the general contractor for its own

negligence"]). Moreover, the provision specifically contemplates indemnity as to attorney fees

(see Kalnit v 141 E. 88 th St., LLC, 210 AD3d 531 [1st Dept 2022] [defendant entitled to

indemnity, including attorneys' fees and costs, based on provision in parties' agreement]).

In opposition, RGF offers no admissible evidence and thus raises no triable issues of fact.

RGF's motion for summary judgment (006)

RGF seeks summary judgment in its favor, dismissing the complaint, IP A's cross-claims,

and IP A's third-party complaint with prejudice. Quoting Noia v Maselli, RGF argues that it

cannot be held liable for any dangerous or defective condition at the Park because it did not own,

occupy, or control the Park or use it for a special purpose (45 AD3d 746, 746 [2d Dept 2007]

["Liability for a dangerous or defective condition on property is generally predicated upon

ownership, occupancy, control or special use of the property ... "] [internal quotation marks and

citation omitted]).

However, plaintiffs' claims against RGF do not depend on whether it was an owner or

occupant of the Park, but rather whether it created a dangerous condition, for which, pursuant to

Espinal, it may be held liable. Thus, these contentions are immaterial.

Next, RGF argues that it did not breach a duty of care under Espinal as it did not create a

dangerous condition. However, as discussed previously, it offers no supporting evidence, and

does not controvert the evidence offered against it. RGF' s argument that the exclusion applies to

the bolts at issue is also unavailing, for the reasons set forth above.

Moreover, the testimony of the IP A witness, that he personally observed RGF employees

installing the bolts at issue, is not controverted by RGF former president's testimony that he

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could not confirm or deny that RGF installed the bolts, especially as he admitted that RGF used

such bolts to perform the work required in the Subcontract. RGF thus fails to meet its burden,

prima facie, of showing that it did launch a force or instrument of harm by its installation of the

bolts. RGF's motion for summary dismissal of the complaint against it is therefore denied.

RGF' s motion to dismiss IP A's cross-claim for indemnity is denied for the reasons set

forth above on IP A's cross-motion.

In support of its motion for dismissal of IP A's cross-claim for breach of the Subcontract's

agreement to procure insurance coverage, RGF submits it commercial general liability policy for

the period of August 29, 2012 through August 29, 2013, which includes an endorsement

numbered "CG 20 37 07 04" and captioned "Additional Insured - Owners, Lessees or

Contractors," which states that Section II of the policy's Commercial General Liability Part was

amended to include as an additional insured any "Person(s) Or Organization(s): As Required By

Written Contract." (NYSCEF Doc No. 190).

RGF argues that as its agreement with IPA required RGF to obtain such insurance and as

it procured an insurance policy in accordance therewith, IP A's claim for breach of contract must

be dismissed.

In opposition, IP A argues that RGF has not shown whether RGF obtained any other

insurance coverage, such as excess or umbrella insurance, and whether such additional coverage

named IP A as additional insureds, nor did RGF submit an affidavit attesting that no other

insurance exists.

Article 13 of the Subcontract provides that:

[t]he Subcontractor shall obtain and maintain such insurance as required by Contractor under the Prime Contract, all as more particularly specified in Exhibit 'B' attached hereto, [and] the Subcontractor shall provide Contractor proof of insurance naming Contractor and Owner as additional insureds ... [and] prior to

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the commencement of the Work, furnish Contractor with certificates of insurance.

(NYSCEF Doc No. 150).

As RGF failed to submit a copy of the Subcontract' s Exhibit "B", or the certificates of

insurance required under Article 13, it does not demonstrate that IP A's claim for breach of the

failure to procure insurance must be denied.

Conclusion

Accordingly, it is hereby

ORDERED that plaintiffs' motion for summary judgment as to the liability of defendants

IPA and RGF (seq. 005) is granted only as to RGF; it is further

ORDERED that defendant IPA' s cross-motion for summary judgment is granted to the

extent of declaring RGF liable to provide it contractual indemnification for its defense costs,

including attorneys' fees; it is further

ORDERED that RGF's motion for summary judgment dismissing plaintiffs' complaint

against it and IP A's cross-claim against it for breach of its agreement to procure insurance

coverage (seq. 006), is denied; and its motion seeking dismissal ofIPA's cross-claim for

contractual indemnification is denied as moot; and it is further

ORDERED that the parties shall appear for a settlement/trial scheduling conference on

January 29, 2025 at 9:30 am at 71 Thomas Street, Room 305, New York, New York.

""' , , , ( ] _ _" rnm

10/23/2024 DATE DAVID B. COHEN, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED □ DENIED X GRANTED IN PART □ OTHER APPLICATION :

CHECK IF APPROPRIATE : SETTLE ORDER

INCLUDES TRANSFER/REASSIGN SUBMIT ORDER

FIDUCIARY APPOINTMENT B REFERENCE

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Footnotes

[1] of 11 [* 1] Background Plaintiff Jane Martin Watson (Watson) and her spouse, plaintiff Robert I. Watson, allege that on June 22, 2013, while visiting the Park, Watson fell and sustained severe personal injuries by tripping over an "uncovered anchor and bolts" protruding from the pavement surface of the Park's Parking Lot No. 5 (see amended verified complaint [complaint] [NYSCEF Doc No. 134]). Discussion "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] [citations omitted]). Once the movant has made its showing, "the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do .... '" (Fuller v KFG Land L LLC, 189 AD3d 666, 669 [1st Dept 2020], quoting Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). In deciding a motion for summary judgment, the court must"[ v ]iew[] the evidence in a light most favorable" to the nonmovant (Summer H v New York City Dept. of Educ., 19 NY3d 1030, 1031 [2012] [citation omitted]). Party affidavits and other proof must be examined carefully "because summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223,231 [1978] [citation and internal quotation marks omitted]). Still, "only the existence ofa bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment" (id.). 157377/2014 WATSON, JANE MARTIN vs. INTERCOUNTY PAVING Page 2 of 11 Motion No. 005 006

[2] of 11 [* 2] Plaintiffs' motion for partial summary judgment (005) A. Contentions Plaintiffs assert that IPA was hired as general contractor by the State of New York (the State) to construct a bicycle path at the Park, a portion of which traversed part of the existing pavement of Parking Lot No. 5. IPA hired RGF as its subcontractor, to construct and install timber railing and traffic control signs along the bicycle path. Plaintiffs allege that, after the construction work was completed, IPA and RGF left two metal bolts protruding two to three inches from the pavement, creating a tripping hazard in an area that had been specifically designated for pedestrian traffic (NYSCEF Doc No. 129). According to plaintiffs, IP A's General Superintendent testified that he saw RGF personnel install the bolts to secure "string lines" in order to align the posts correctly for the timber rails. He also stated that it was RGF' s responsibility to remove the bolts from the concrete once the rails had been installed and to fill the holes with epoxy (NYSCEF Doc No. 153). From these alleged facts, plaintiffs argue that IP A and RGF created a hazard that caused Watson to trip and fall, resulting in her serious personal injuries, citing Espinal v Melville Snow Contrs., which provides that a contractor "may be said to have assumed a duty of care - and thus be potentially liable in tort - to third persons ... where the contracting party, in failing to exercise reasonable care in the performance of his duties, 'launche[s] a force or instrument of harm"' (98 NY2d 136, 140 [1st Dept 2002] [quoting HR. Moch Co. v Rensselaer Water Co., 247 NY 160,

[167] [1928]). IP A asserts that it was hired by the State to install bicycle paths in the area abutting Parking Lot No. 5 (NYSCEF Doc No. 164), and that its engagement for this project was 157377/2014 WATSON, JANE MARTIN vs. INTERCOUNTY PAVING Page 3 of 11 Motion No. 005 006 3 of 11 [* 3] governed by an agreement it entered into with the State on September 27, 2012, by which IPA, as the prime contractor, was responsible for removing existing pavement and installing new pavement for bicycle lanes, and also by which IP A was permitted to hire subcontractors to perform work it could not do itself (NYSCEF Doc No. 149). IP A contends that it hired RGF as its sole subcontractor to install the guardrails at the project (id. ,i,i 38, 42), which were needed to protect pedestrians and bicyclists on the bicycle path from motor vehicle traffic (id. ,i 40). IP A's agreement with RGF was governed by their subcontract (NYSCEF Doc No. 150 [Subcontract]), which, among others, required RGF to provide insurance coverage for IP A and the State, naming them as additional insureds, and to indemnify IP A and the State, as follows: The Subcontractor shall obtain and maintain such insurance as required by Contractor under the Prime Contract, all as more particularly specified in Exhibit 'B' attached hereto, the Subcontractor shall provide Contractor proof of insurance naming Contractor and Owner as additional insureds. The Contractor assumes no responsibility if said limits should be inadequate for the protection of the Subcontractor. Subcontractor is hereby advised to consult with insurance specialists to determine what types of insurance it should carry and whether or not to carry limits higher than as may be required under the Prime Contract. Subcontractor shall, prior to the commencement of the Work, furnish Contractor with certificates of insurance, and endorsements to its insurance policies, containing a provision that coverage afforded shall not be canceled, materially changed, or refused renewal until at least thirty (30) days after notice has been given to the Contractor. 25.1 To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner, the Owner's Representative, Contractor, and agents and employees of any of them, from and against any and all claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from ( 1) its performance of the Work or (2) any breach of this agreement by Subcontractor, regardless of whether or not such claim, damages, loss or expense is caused in part by a party indemnified hereunder. 157377/2014 WATSON, JANE MARTIN vs. INTERCOUNTY PAVING Page 4 of 11 Motion No. 005 006 4 of 11 [* 4]