McHugh v. Consolidated Edison Co. of N.Y., Inc.

McHugh v Consolidated Edison Co. of N.Y., Inc. 2024 NY Slip Op 32058(U) June 18, 2024 Supreme Court, New York County Docket Number: Index No. 162650/2015 Judge: Mary V. Rosado 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.

INDEX NO. 162650/2015 NYSCEF DOC. NO. 303 RECEIVED NYSCEF: 06/18/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: HON. MARY V. ROSADO PART 33M Justice ---X INDEX NO. 162650/2015 EDWARD MCHUGH, MOTION DATE 01/12/2023 Plaintiff, MOTION SEQ. NO. 007 - V -

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,PEDUTO CONSTRUCTION CORP., CITYWIDE DECISION + ORDER ON PAVING INCORPORATED, MOTION

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

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. Third-Party Index No. 595294/2018 Third-Party Plaintiff,

-against-

PEDUTO CONSTRUCTION CORP.

Third-Party Defendant. ------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 007) 253, 254, 255, 256, 257,258,259,260,261,262,263,264,265,266,267,268,269,270,271,272,273,274,275,276,277, 278,279,280,281,282,283,284,285,286,287,291 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, and after oral argument, which was held on November 21,

2023 with Nancy B. Clifford, Esq. appearing for Plaintiff Edward McHugh ("Plaintiff'), Joseph

Glatstein, Esq. appearing for Defendant/Third-Party Plaintiff Consolidated Edison Company of

New York, Inc. ("Con Ed") and Kevin Sheehan, Esq. appearing for Defendant Citywide Paving

Incorporated ("Citywide"), Citywide's motion for summary judgment in favor of Citywide

dismissing Plaintiffs Complaint and any cross-claims asserted against Citywide is denied.

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I. Background

The underlying action involves injuries allegedly suffered by Plaintiff, a police officer,

who claims that he tripped over a defective condition on the road in front of West 18 !51 Street,

New York, NY (NYSCEF Doc. 258).

Plaintiff commenced this action by filing of the original Complaint dated December 11,

2015 solely against Defendant Con Ed, alleging that Plaintiffs accident occurred in front of 662

West 181 st Street, New York, New York (NYSCEF Doc. 255). Subsequently, on January 15, 2018

Plaintiff commenced an action against Defendant Peduto Construction Corp. ("Peduto") for the

same injuries, again alleging that his accident occurred at 662 West 18 !51 Street, New York, New

York (NYSCEF Doc. 256). On March 9, 2018 Defendant Con Ed commenced a third-party action

in the instant case against Peduto (NYSCEF Doc. 257). Thereafter, on May 24, 2018 Plaintiff

commenced another action against Defendant Citywide, alleging for a third time that his accident

occurred at 662 West 18!51 Street, New York, New York (NYSCEF Doc. 275). 1

However, Plaintiffs Third Supplemental Bill of Particulars dated June 22, 2022 alleges

that Plaintiffs accident occurred in a hole across from 661 West 18 !51 Street and 665 West 18 !51

Street, which are next to each other on one side of the roadway, and across from 662 West 18!51

Street on the other (NYSCEF Doc. 268 at 14). On September 6, 2019 Defendant Con Ed asserted

cross-claims against Defendants Con Ed, Peduto and Citywide for ( 1) common law

indemnification and contribution; (2) contractual indemnification and contribution; and (3) breach

of contract for failure to procure insurance (NYSCEF Doc. 260).

On January 12, 2023 Defendant Citywide brought the instant motion for an Order granting

summary judgment in favor of Citywide and dismissing all claims and cross-claims as against

1 The three pending actions were consolidated into the above captioned index number by Decision and Order filed March 15, 2019 (NYSCEF Doc. 259). 162650/2015 MCHUGH, EDWARD vs. CONSOLIDATED EDISON COMPANY Page 2 of 9 Motion No. 007

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Citywide (NYSCEF Doc. 253). In support of its motion, Citywide argues, inter alia, that its motion

should be granted because (1) there is no proof that Citywide performed any work at the location

of Plaintiffs accident; (2) Citywide owed no duty to Plaintiff; and (3) if Citywide did owe a duty

to Plaintiff, Citywide was not negligent (NYSCEF Doc. 254 ).

II. Discussion

Summary judgment is a drastic remedy, to be granted only where the moving party has

tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v

Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and

on a motion for summary judgment, facts must be viewed in the light most favorable to the non-

moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).

Once this showing is made, the burden shifts to the party opposing the motion to produce

evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact

which require a trial. (see e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980];

Pemberton v New York City Tr. Auth., 304 AD2d 340, 342 [1st Dept 2003]). Mere conclusions of

law or fact are insufficient to defeat a motion for summary judgment (see Banco Popular North

Am. v Victory Taxi Mgt., Inc., l NY3d 381 [2004]).

Pursuant to CPLR 3212(b), a motion for summary judgment must be supported by the

affidavit of a person having personal knowledge of the facts. Further, the First Department has

held that "an affidavit by an individual without personal knowledge of the facts does not establish

the proponent's prima facie burden" (Saunders v JP.Z. Realty, LLC, 175 AD3d 1163, 1164 [1st

Dept 2019]; see also Dempsey v Intercontinental Hotel Corp., 126 AD2d 477,479 [1st Dept 1987]

(holding that "[ a]n affirmation by an attorney who does not claim to have any personal knowledge

of the facts has no probative value"). However, the affirmation of counsel may serve "as a vehicle

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for the submission of evidentiary proof in admissible form, such as a [party's] deposition (Aur v

Manhattan Greenpoint Ltd, 132 AD3d 595 [1st Dept 2015]). In this regard, the Court of Appeals

has held that "[t]he fact that defendant's supporting proof was placed before the court by way of

an attorney's affidavit annexing plaintiffs deposition testimony and other proof, rather than

affidavits of fact on personal knowledge, does not defeat defendant's right to summary judgment"

(Olan v Farrell Lines, Inc., 64 NY2d 1092, 1093 [1985]).

1. Questions of Fact Remain Regarding Whether Citywide Performed Work at the Location of Plaintiffs Accident

It is well established that summary judgment is proper where a defendant shows that the

record contains no evidence that it performed or was ordered to perform any work at the site of the

plaintiffs accident (Robinson v City of New York, 18 AD3d 255, 256 [l5 1 Dept 2005]). Here,

Defendant Citywide argues that it is entitled to summary judgment because the record establishes

that "Citywide did not perform work at the accident location" (NYSCEF Doc. 254 at 10).

In support of this contention, Citywide relies, inter alia, on the testimony of Con Ed's Chief

Construction Inspector, Lance Del Plato ('Del Plato"), who asserts that "the surface material

involved [in Plaintiffs accident] was concrete" (NYSCEF Doc. 262 at 68). Further, Citywide cites

to the testimony of Citywide Superintendent, John Denegall ("Denegall") who testified that

Citywide does only asphalt work and that Citywide's work contract with Con Ed was for "asphalt

only restoration" and did not relate to concrete (NYSCEF Doc. 264 at 13). Denegall also testified

that he reviewed Citywide's records and concluded that Citywide did not perform any work at 662

West 18l51 Street in New York City (Id. at 14-16).

Notably, while Plaintiff initially contended that his accident occurred at 662 West l 8 l5 1

Street, as discussed above, Plaintiffs Third Supplemental Bill of Particulars alleges that Plaintiffs

accident occurred "across from the premises known as 661 West 181 st Street (NYSCEF Doc. 268

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at 1 4). Further, the "Report of Street and/or Sidewalk Openings - Street Segment", submitted by

Con Ed to Harleysville Worcester Insurance Company ("Harleysville"), Citywide's insurance

carrier, is for work done in front of 661 West 181 st Street (NYSCEF Doc. 276 at 12). As there is

evidence in the record that Plaintiff's accident occurred at Citywide 661 West 181 st Street as well

as evidence that Citywide performed work at 661 West 181 st Street, Dene gall's testimony that

Citywide performed no work in front of 662 West 18 l5t Street does not eliminate questions of fact

regarding Citywide's work performed at 661 West 18l5t Street. Further, photos of the accident

location, attached as Exhibit C to Plaintiff's opposition papers, show asphalt on the roadway where

Plaintiff allegedly fell, thus raising a question of fact as to whether asphalt work was done at that

location (NYSCEF Doc. 284).

In light of the foregoing, the Court finds that questions of fact remain regarding whether

Citywide performed work at the location of Plaintiff's accident.

11. Questions of Fact Remain Regarding the Duty Owed by Citywide to Plaintiff

Citywide argues that the agreement between Con Ed and Citywide does not give rise to

liability on the part of Citywide to Plaintiff (NYSCEF Doc. 245 at 1 45). However, in Espinal v.

Melville Snow Contrs., 98 N.Y.2d 136, 138 (2002), which Citywide cites in support of its

contention, the Court of Appeals held that "irrespective of the attendant contractual obligations,

tort liability to a third person may arise where 'the putative wrongdoer has advanced to such a

point as to have launched a force of instrument of harm, or has stopped where inaction is at most

a refusal to become an instrument for good"' (Espinal v. Melville Snow Contrs., 98 N.Y.2d 136,

138 [2002] quoting HR. Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]).

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Here, questions of fact remain as to whether Citywide's performed work at the site of

Plaintiffs injury. Questions also remain regarding whether Citywide's negligence in the

performance of that work launched an instrument of harm giving rise to liability.

111. Citywide's Motion for Summary Judgment Dismissing Defendant Con Ed's Cross-Claim Against Citywide for Common Law Indemnification and Contribution is Denied

It is well established that a motion for summary judgment seeking dismissal of common-

law indemnification and contribution claims should be denied where there are material issues of

fact as to whether negligence by the moving party caused or contributed to the plaintiffs injuries

(Douglas v Roseland Dev. Assoc., LLC, 225 AD3d 467,468 [I st Dept 2024]).

Citywide argues that the common law indemnification cross-claim asserted against it by

Con Ed must be dismissed because Citywide has made a prima facie showing that it was not

negligent (NYSCEF Doc. 253 at 1 52). Further, Citywide contends that the common law

contribution cross-claim asserted by Con Ed against it must also be dismissed because there is no

issue of fact as to Citywide' s negligence. However, as discussed above, material questions of fact

remain regarding Citywide's negligence which precluded summary dismissal of Con Ed's

common law indemnification and contribution cross-claims.

IV. Citywide's Motion for Summary Judgment Dismissing Defendant Con Ed's Cross-Claim Against Citywide for Contractual Indemnification is Denied

It is well established that the "right of a party to recover indemnification on the basis of a

contractual provision depends on the intent of the parties and the manner in which that intent is

expressed in the contract" (Suazo v Maple Ridge Assoc., L.L.C, 85 AD3d 459, 460 [1st Dept

2011 ]). Here, Citywide contends that the agreement between Con Edison and Citywide contains

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the following language:

Citywide to defend and indemnify Con Edison all claims, damage, loss and liability, for injury to or the death of persons resulting from, or connected with, the performance of the insured' s work including claims arising from the partial or sole negligence of Con Edison (NYSCEF Doc. 254 at~ 55). 2

Citywide argues that indemnification provision is not triggered because Plaintiff's injuries "did

not arise out of and were not connected in any manner to Citywide's work" (Id. at~ 56). Even

assuming, arguendo, that the contract between Con Ed and Citywide does contain the language

cited by Citywide, as discussed above, Citywide has failed to demonstrate as a matter of law that

Plaintiff's injures did not arise out of Citywide's work. Further, Citywide has failed to demonstrate

that Plaintiff's injuries were not partially or solely caused by the negligence of Con Ed.

In light of the foregoing, Citywide's motion for summary judgment dismissing Con Ed's

cross-claim for contractual indemnification against it is denied.

v. Citywide's Motion for Summary Judgment Dismissing Defendant Con Ed's Cross-Claim Against Citywide for Breach of Contract for Failure to Procure Insurance is Denied

The contract between Citywide and Con Ed requires, inter alia, that Citywide procure

insurance for the benefit of Con Ed, with Comprehensive Liability Coverage with a combined

single limit of $7,500,000 per occurrence (NYSCEF Doc. 270 at~ 37). Citywide is also required

to name Con Edison as an additional insured (Id.).

Citywide argues that any claims against Citywide for breach of contract for failure to

procure insurance must be dismissed as against Citywide because Citywide obtained the requisite

insurance (NYSCEF Doc. 254 at~ 58). In support of this contention, Citywide attached a copy of

Citywide's Commercial General Liability Policy (NYSCEF Doc. 271). Although Citywide was

2 Citywide quotes this contractual language without reference to any exhibit. 162650/2015 MCHUGH, EDWARD vs. CONSOLIDATED EDISON COMPANY Page 7 of 9 Motion No. 007

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contractually obligated to procure $7,500,000 in liability coverage, the General Liability Policy

shows that Citywide only procured $2,000,000 in liability coverage (NSYCEF Doc. 271). Further,

there is no indication on the General Liability Policy that Con Ed was included as an additional

insured on the policy (NYSCEF Doc. 271).

In light of the foregoing, the Court finds that questions of fact remain as to whether

Citywide breached its contract with Con Ed by failing to procure the required insurance. As such,

Citywide's motion for summary judgment dismissing Con Ed's cross-claim for breach of contract

is denied.

Accordingly, it is hereby,

ORDERED that Defendant Citywide Paving Incorporated's motion for summary judgment

in favor of Citywide dismissing Plaintiff Edward McHugh's Complaint and any cross-claims

asserted against Citywide is denied; and it is further

ORDERED that on or before July 9, 2024, the parties in this case shall submit a proposed

Status Conference Order via e-mail to SFC-Part33-Clerk@nycourts.gov. If the parties are unable

to agree to a proposed Status Conference Order, the parties are directed to appear for an in-person

status conference on July 10, 2024 at 9:30 a.m. in Room 442, 60 Centre Street, New York, New

York; and it is further

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ORDERED that within 10 days of entry, counsel for Plaintiff Edward McHugh shall serve

a copy of this Decision and order, with notice of entry, on all parties to this case; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

6/18/2024 DATE HON~ ARY V. ROSADO, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

APPLICATION:

CHECK IF APPROPRIATE: GRANTED

SETTLE ORDER Q DENIED

INCLUDES TRANSFER/REASSIGN 8 GRANTED IN PART

SUBMIT ORDER

FIDUCIARY APPOINTMENT □ OTHER

□ REFERENCE

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